United States v. Harcrow, 66 M.J. 154 (in addressing waiver of constitutional rights, the Supreme Court long ago emphasized that there is a presumption against the waiver of constitutional rights, and for a waiver to be effective, it must be clearly established that there was an intentional relinquishment or abandonment of a known right or privilege; yet the Supreme Court has also acknowledged that counsel may, under some conditions, where the circumstances are not exceptional, preclude the accused from asserting constitutional claims; that is to say, in certain circumstances, defense counsel may waive constitutional rights on behalf of their clients). 

United States v. Othuru, 65 M.J. 375 (although some constitutional errors may be so fundamental as to be prejudicial in any event, not all constitutional errors require per se reversal; in the context of a particular case, certain constitutional errors, no less than other errors, may have been harmless in terms of their effect on the factfinding process at trial; the denial of the opportunity to cross-examine an adverse witness does not fit within the limited category of constitutional errors that are deemed prejudicial in every case; as the error in this case involves appellant’s Sixth Amendment right to cross-examine the witnesses, an appellate court may test this Confrontation Clause error for its effect upon the trial to determine whether the error was harmless beyond a reasonable doubt).

(the government bears the burden of establishing that a constitutional error had no causal effect upon the findings; to meet this burden, the government must demonstrate that there is no reasonable possibility that the error contributed to the contested findings of guilty).

(an appellate court will not affirm an accused’s conviction where a constitutional error occurred at trial unless it is convinced beyond a reasonable doubt that the constitutional error was not a factor in obtaining that conviction).

 
United States v. Moran, 65 M.J. 178 (the law generally discourages trial counsel’s presentation of testimony or argument mentioning an accused’s invocation of his constitutional rights unless, for example, an accused invites such testimony or argument in rebuttal to his own case; such comments may serve to hinder the free exercise of such rights -- rights that carry with them the implicit assurance that their invocation will carry no penalty; the constraint against mentioning the exercise of constitutional rights does not depend on the specific right at issue).

Loving v. United States, 64 M.J. 132 (in Teague v. Lane, the Supreme Court held that new constitutional rules should not be applied retroactively to convictions on collateral review that have become final, unless a new rule falls into one of two exceptions: (1) the new substantive rule places certain kinds of individual conduct beyond the power of the criminal law-making authority to proscribe; or (2) the new procedural rule requires procedures without which the likelihood of an accurate conviction is seriously diminished; for purposes of Teague, a military justice case is final when there is a final judgment as to the legality of the proceedings under Article 71(c), UCMJ, i.e. when all direct judicial appeals have been exhausted). 

(petitioner’s conviction was final for the purposes of the Teague rule precluding retroactive application of new constitutional rules to convictions on collateral review that have become final, where the CAAF had completed direct review, and the Supreme Court granted certiorari and eventually affirmed the CAAF’s decision; the President’s decision whether to order the death sentence executed or to grant executive clemency is not part of the direct judicial review of the case). 

United States v. Lane, 64 M.J. 1 (the Incompatibility Clause of the Constitution, a provision essential to the structural integrity of the Constitution, provides that no person holding any office under the United States, shall be a member of either House during his continuance in office). 

(the concern of the Framers of the Constitution with maintenance of the separation of powers is found in the so-called Ineligibility and Incompatibility Clauses contained in the Constitution; these provisions provide the context for interpreting the Appointments Clause of the Constitution).

(the federal government positions to which the term “Officers of the United States” in the Appointments Clause of the Constitution pertains includes all persons who can be said to hold an office under the Government; any appointee exercising significant authority pursuant to the laws of the United States is an Officer of the United States under the Appointments Clause). 

(military appellate judges are Officers of the United States who must be appointed pursuant to the Appointments Clause; presidential nomination and Senate confirmation of a person as a military officer satisfy the Appointments Clause with respect to the assignment of such an officer to the military judiciary). 

(through the limitation of the Incompatibility Clause, the Constitution prohibits Members of Congress from holding other offices).

(the Incompatibility Clause plays a vital role in the constitutional scheme by reinforcing the separation of powers; the Incompatibility Principle has become one of the five great distinguishing structural features of the constitutional system, along with checks and balances, separation of powers, bicameralism, and federalism). 

(the term “office” in the context of the Incompatibility Clause is given the same meaning as that term is given in the Appointments Clause).

(the Incompatibility Clause of the Constitution, which prohibits a Member of Congress from holding any office under the United States, precludes a Member of Congress from serving as an appellate judge on a service court of criminal appeals because such a position is an office that must be filled by an Officer of United States). 

(the structure of the Constitution provides for separate and shared powers among the executive, legislative, and judicial branches; one of the purposes served by the separation of powers is that a military accused will not be judged by a Member of Congress; service by a Member of Congress performing independent judicial functions runs afoul of the fundamental constitutional principle of separation of powers; military status simply is not an issue; the foregoing principle applies equally to all who would act as judges on a court of criminal appeals, whether as a civilian or as a military officer). 

United States v. Carter, 61 M.J. 30 (members of the armed forces, like their civilian counterparts, may not be compelled to incriminate themselves in a criminal case; the privilege against self-incrimination provides an accused with the right to not testify, and precludes comment by the prosecution on the accused’s silence).

United States v. Reeves, 61 M.J. 108 (the constitutional privilege against self-incrimination and the right to counsel are rights bestowed every witness). 

United States v. Stebbins, 61 M.J. 366 (the Eighth Amendment provides that excessive fines shall not be imposed; there is a two-pronged analysis for determining whether the Excessive Fines Clause is violated; first, a court must determine if the fine falls within the Excessive Fines Clause and, if so, whether the fine is excessive). 

(the touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: the amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish; therefore, if a fine is grossly disproportionate to the gravity of an accused’s offense, it violates the Excessive Fines Clause; this proportionality analysis under the Excessive Fines Clause is conducted on a case-by-case basis and is distinguishable from the determination of sentence appropriateness required by Article 66). 

(factors to be analyzed in determining whether a fine is grossly disproportionate include (1) the nature of the offense and whether it is related to any other illegal activities by the accused; (2) whether the accused fits into the class of persons for whom the statute was principally designed; (3) whether the maximum sentence under the Federal Sentencing Guidelines is relatively low, thus confirming a minimal level of culpability; and (4) the level of harm caused by the accused’s offense, to include those who were affected by the offense and the magnitude of harm to those affected). 

(at the time that the Constitution was adopted, the word “fine” was understood to mean a payment to a sovereign as punishment for some offense).

United States v. Disney, 62 M.J. 46 (Title 18 U.S.C. § 842 (h) (storing stolen explosives that have been shipped in interstate commerce) is a constitutional exercise of Congress’s authority under the Commerce Clause; the disposition of stolen explosives which are moving as, which are part of, which constitute, or which have been shipped or transported in, interstate or foreign commerce clearly falls within the scope of Congress’s enumerated Article I, Section 8 regulatory powers).   

2004

United States v. Hansen, 59 MJ 410 (where bedrock constitutional rights are at issue and are waived, we should not settle for inference and presumption when certainty is so readily obtained).

United States v. McCrimmon, 60 MJ 145 (an accused does not have a constitutional right to plead guilty; as the Constitution guarantees only a right to plead not guilty, an accused has generally only a right to offer a plea of guilty, and may not even do that for an offense for which the death penalty may be adjudged).

United States v. Marcum, 60 MJ 198 (Constitutional rights generally apply to members of the armed forces unless by their express terms, or the express language of the Constitution, they are inapplicable).

(the fundamental necessity for obedience and the consequent necessity for imposition of discipline may render permissible within the military that which would be constitutionally impermissible outside it; while servicemembers clearly retain a liberty interest to engage in certain intimate sexual conduct, this right must be tempered in a military setting based on the mission of the military, the need for obedience of orders, and civilian supremacy).

2003

United States v. Mahoney, 58 MJ 346 (the military, like the Federal and state systems, has hierarchical sources of rights, and chief among those sources is the Constitution of the United States; in rendering our decisions, we look to the highest source of authority, unless a lower source creates rules that are constitutional and provide greater rights for the individual).

United States v. Mapes, 59 MJ 60 (it is a fundamental principle that the Constitution each servicemember swears to defend affords to every servicemember Constitutional protections).

2002

United States v. Hall, 56 MJ 432 (ruling excluding evidence is not constitutional error unless the evidence is material or vital).

(exclusion of evidence impeaching a key witness may be constitutional error if there is a reasonable likelihood that the excluded evidence may have tipped the credibility balance in appellant’s favor).

United States v. Jeffers, 57 MJ 13 (in considering challenges to the breadth of an order, Court will examine the specific conduct at issue rather than the theoretical limits of the order).

(an order to have no social contact with a given individual was definite, specific, and importantly, uncontested by defense counsel at trial; there was absolutely no restriction on appellant’s ability to communicate with that individual, the company clerk, on official business).

2001

United States v. New, 55 MJ 95 (the Sixth Amendment right to trial by jury does not apply to courts-martial).

United States v. James, 55 MJ 297 (the definition of “child pornography” in 18 USC § 2256(8) and the prohibitions in 18 USC § 2252A are constitutional and do not infringe on speech protected by the First Amendment).

(the definition of “child pornography” found in 18 USC § 2256(8) creates a content-based restriction, but suppressing the “virtual” or apparent child pornography trade is a compelling interest that justifies the expanded definition of “child pornography” found in the federal statute).

United States v. Lambert, 55 MJ 293 (a military accused has no Sixth Amendment right to a trial by jury; however, the Sixth Amendment requirement that the jury be impartial applies to court-martial members and covers not only the selection of individual jurors, but also their conduct during the trial proceedings and the subsequent deliberations).

2000

United States v. Wright, 53 MJ 476 (the presumption is that a rule of evidence is constitutional unless lack of constitutionality is clearly and unmistakably shown).

United States v. Allen, 53 MJ 402 (any constitutional right protecting sexual relations within a marital relationship must bear a reasonable relationship to activity that is in furtherance of or supportive of the interests of the marital relationship).

(appellant’s acts of sodomy were not in furtherance of his marital relationship where the sodomy was a part of a pattern of degradation and depersonalization that appellant visited upon his former wife; such a pattern falls outside the ambit of conduct that could be considered in furtherance of the marriage).

United States v. Diffoot, 54 MJ 149 (the military justice system established by Congress in accordance with the Constitution does not permit a conviction based on an accused’s race or an accused’s association, and argument urging such a result prejudicially violates appellant’s due process right to a fundamentally fair trial).

1999

United States v. Gray, 51 MJ 1 (no right to grand-jury presentment or indictment).

(no right to a jury trial; see United States v. Loving, 41 MJ 213, 287 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

(claim that court-martial procedures deny an accused his Sixth Amendment right to jury trial and an impartial cross-section of the community lacks merit; see United States v. Loving, 41 MJ 213, 285 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).