FIRST PRINCIPLES: Constitutional Matters: Due Process

FIRST PRINCIPLES: Constitutional Matters: Due Process

United States v. Ashby, 68 M.J. 108 (due process requires that a person have fair notice that an act is criminal before being prosecuted for it).

(in assessing whether a facially unreasonable delay has resulted in a due process violation, an appellate court weighs the following four Barker [407 US 514 (1972)] factors: (1) the length of the delay; (2) the reasons for the delay; (3) appellant’s assertion of the right to timely review and appeal; and (4) prejudice).

United States v. Schweitzer, 68 M.J. 133 (convicted servicemembers have a due process right to timely review and appeal of courts-martial convictions; to rebut a due process violation, the government must show that the error was harmless beyond a reasonable doubt under the totality of the circumstances; where appellant has not suffered any prejudice under the fourth prong of the Moreno [63 MJ 129 (CAAF 2006)] speedy review and appeal test - ongoing prejudice in the form of oppressive incarceration, undue anxiety, or the impairment of the ability to prevail in a retrial - the government may more readily demonstrate that any error is harmless beyond a reasonable doubt).

United States v. Bush, 68 M.J. 96 (aside from structural errors which are not susceptible of analysis for harm, a constitutional error, such as a post-trial due process violation, must be harmless beyond a reasonable doubt before an appellate court can affirm the resultant conviction or sentence).

(where an appellant alleges a due process violation in a post-trial delay context, and where a due process violation is found, the analysis performed by an appellate court necessarily involves two separate prejudice determinations; the initial prejudice review occurs in evaluating the fourth Barker [407 US 514 (1972)] factor, which defines prejudice to include oppressive incarceration, undue anxiety, and limitation of the possibility that a convicted person’s grounds for appeal, and his defenses in case of reversal and retrial, might be impaired; if a due process violation is found after balancing the Barker factors, an appellate court determines whether, under the totality of the circumstances, the error is harmless beyond a reasonable doubt; that harmless beyond a reasonable doubt review necessarily involves a prejudice analysis, and although it involves a review of the same record, the scope and burden differ from the Barker prejudice analysis).

United States v. Smead, 68 M.J. 44 (a PTA in the military justice system establishes a constitutional contract between the accused and the convening authority; in a typical PTA, the accused foregoes certain constitutional rights in exchange for a reduction in sentence or other benefit; as a result, when interpreting PTAs, contract principles are outweighed by the Constitution’s Due Process Clause protections for an accused; in a criminal context, the government is bound to keep its constitutional promises).

(where a plea is not knowing and voluntary, it has been obtained in violation of due process and is therefore void).

United States v. Chatfield, 67 M.J. 452 (while Miranda warnings provide procedural safeguards to secure the right against self-incrimination during custodial interrogations, the Due Process Clauses of the Fifth and Fourteenth Amendments protect an accused generally against the admission of any involuntary statements, whether made in or out of custody).

United States v. Marshall, 67 M.J. 418 (the fact that two alternative theories of a case may both involve criminal conduct does not relieve the government of its due process obligations of notice to the accused and proof beyond a reasonable doubt of the offense alleged).

(fundamental due process demands that an accused be afforded the opportunity to defend against a charge before a conviction on the basis of that charge can be sustained).

United States v. Miller, 67 M.J. 385 (appellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial; to uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process).

United States v. Ober, 66 M.J. 393 (an appellate court cannot affirm a criminal conviction on the basis of a theory of liability not presented to the trier of fact; to uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process).

United States v. Elfayoumi, 66 M.J. 354 (as a matter of due process, an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel).

United States v. Webb, 66 M.J. 89 (the Due Process Clause of the Fifth Amendment guarantees that criminal defendants be afforded a meaningful opportunity to present a complete defense; that guarantee requires the prosecution to disclose to the defense evidence favorable to an accused where the evidence is material either to guilt or to punishment; favorable evidence includes impeachment evidence that, if disclosed and used effectively, may make the difference between conviction and acquittal).

United States v. Navrestad, 66 M.J. 262 (an appellate court may not affirm a conviction on a theory not presented to the trier of fact; to do so offends the most basic notions of due process, because it violates an accused’s right to be heard on the specific charges of which he or she is accused).

United States v. Simon, 64 M.J. 205 (as a matter of law, the CCA reviews claims of untimely post-trial review and appeal under the Due Process Clause of the Constitution).

(a CCA’s due process review of a claim of unreasonable delay involves a four-factor analysis in which at least two of the factors concern the personal post-trial circumstances of the servicemember – i.e., reasons for asserting or not asserting the right to timely review, and prejudice; in such cases, the servicemember may well be the best source of information on these factors).

United States v. Dearing, 63 M.J. 478 (servicemembers have a due process right to timely review and appeal of court-martial convictions).

United States v. Moreno, 63 M.J. 129 (due process entitles convicted servicemembers to a timely review and appeal of court-martial convictions).

United States v. Jones, 61 M.J. 80 (an appellant’s constitutional due process right to a speedy post-trial review is a right separate and distinct from the “sentence appropriateness” review under Article 66, UCMJ; determining whether post-trial delay violates an appellant’s due process rights turns on four factors: (1) the length of the delay; (2) the reasons for the delay, (3) the appellant’s assertion of the right to a timely appeal; and (4) prejudice to the appellant).

United States v. Richardson, 61 M.J. 113 (as a matter of due process, an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel).

United States v. Mason, 59 MJ 416 (we hold that the military judge erred in permitting trial counsel’s redirect examination of the DNA expert on the issue of whether either party had requested a retest; the Due Process Clause of the Fifth Amendment to the Constitution requires the Government to prove the defendant’s guilt beyond a reasonable doubt; therefore, the burden of proof to establish the guilt of the accused is upon the Government; in the case at bar, trial counsel’s question to the DNA expert of whether either party had requested a retest suggested that appellant may have been obligated to request a retest, and therefore obligated to prove his own innocence; in so doing, trial counsel improperly implied that the burden of proof had shifted to appellant, in violation of due process).

(we hold that the military judge’s permission of trial counsel’s improper redirect examination of the DNA expert was harmless beyond a reasonable doubt where the evidentiary strength of the DNA evidence in this case was overwhelming, where the military judge instructed the members that the burden of proof to establish the guilt of the accused beyond a reasonable doubt was on the government and never shifts to the accused to establish his innocence or to disprove those facts which are necessary to establish each element of any particular offense, and where the government counsel reiterated the proper burden of proof during his closing argument).

United States v. Toohey, 60 MJ 100 (the Due Process Clause guarantees a constitutional right to a timely review).

United States v. Stirewalt, 60 MJ 297 (constitutional challenges to Article 125, UCMJ, based on the Supreme Court’s decision in Lawrence v. Texas must be addressed on an as applied, case-by-case basis; there is a tripartite framework for addressing Lawrence challenges within the military context: First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? and, Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?).

United States v. Mahoney, 58 MJ 346 (the constitutional guarantee of due process requires that criminal defendants be afforded a meaningful opportunity to present a complete defense).

(failing to disclose evidence favorable to an accused is a due process violation irrespective of the good faith or bad faith of the prosecution).

(the Government’s failure to provide to the defense before trial a letter criticizing a key Government witness violated appellant’s constitutional right to due process of law under Brady v. Maryland, 373 U.S. 83 (1963)).

United States v. Riley, 58 MJ 305 (an appellate court violates due process if it affirms an included offense on a theory not presented to the trier of fact).

United States v. Simpson, 58 MJ 368 (the doctrine of unfair pretrial publicity is based upon the constitutional right to due process).

United States v. Hollis, 57 MJ 74 (appellant was not denied due process by the failure to audiotape or videotape the interviews of child victims of sexual abuse; there is no rule requiring that medical interviews be taped, there is no indication in the record that material evidence was lost, and there is nothing in the record suggesting bad faith).

United States v. Rogers, 54 MJ 244 (specification charged under Article 133, conduct unbecoming an officer, was not void for vagueness because it failed to allege a violation of a regulation or custom of the service which forbade an unprofessional relationship of inappropriate familiarity between a commander and a subordinate officer; the Constitution does not require that a regulation or custom of the service be established, with the possible exception of officer-enlisted “fraternization cases charged under Article 133 instead of Article 134).

(officer charged with conduct unbecoming an officer for having an unprofessional relationship of inappropriate familiarity between a himself and a subordinate officer was on fair notice that his conduct was punishable under Article 133 where a nonpunitive regulation gave examples of unprofessional relationships and where that officer had had occasion to discuss and apply the standards relating to personal relationships).

United States v. Brown, No. 99-0983, 54 MJ 289 (Court of Appeals for the Armed Forces declined to determine whether the convening authority is required to receive an SJA’s recommendation before acting on a request to defer the effective date of forfeitures or to waive automatic forfeiture of pay, as well as whether that recommendation must be served on the accused; but court leaves to the Executive Branch to consider whether, as a matter of law or policy, and consistent with due process considerations, such requests to the convening authority should be followed by a recommendation from the SJA and service on the accused with an opportunity to respond).

United States v. McDonald, 55 MJ 173 (a fundamental requirement of due process is that individuals subjected to proceedings by the Government are entitled to the safeguards established in the governing statutes and regulations, and that the Government must follow the prescribed procedures, regardless whether they are constitutionally required).

(the Constitution requires that evidence admitted during sentencing must comport with the utilitarian purpose of the Due Process Clause, i.e. reliability, and procedural-due-process requirements).

(the Due Process Clause requires that the evidence introduced in sentencing meet minimum standards of reliability).

United States v. Norfleet, 53 MJ 262 (where appellant was tried by an impartial military judge, she was not denied due process although she was not tried by a military judge from another service; there was no legal requirement to provide a military judge from another service; and, absent a showing that such action was taken in other cases in a manner that created a pattern of discrimination against enlisted persons or a suspect class, there was no merit in the claim of denial of due process).

United States v. Wright, 53 MJ 476 (in a “judgment of the Court”, MRE 413, “Evidence of similar crimes in sexual assault cases”, was found to be constitutional in the face of appellant’s claim that the rule violated the Due Process and Equal Protection Clauses of the Constitution).

United States v. Acevedo, 50 MJ 169 (interpretation of a pretrial agreement is a question of law to be reviewed de novo, generally applying basic principles of contract law except, however, where those principles are outweighed by the Constitution’s Due Process Clause protections for an accused).

United States v. Williams, 50 MJ 436 (RCM 701 implements due process requirement that prosecution must disclose “as soon as practicable” information that is material to the issue of guilt or sentence).

United States v. Riley, 50 MJ 410 (for an appellate court to affirm an included offense on a theory not presented to the trier of fact violates an accused’s due process right to be heard on the specific charges of which he or she is accused).

United States v. Cooper, 51 MJ 247 (due process of law requires that an accused be tried by a judge who has no direct, personal, substantial, pecuniary or other disqualifying interest in the accused’s conviction).

United States v. Gray, 51 MJ 1 (appellant was not denied due process by Judge Advocate General’s decision to establish and adhere to procedures to request funding for additional appellate expert mental health assistance where those procedures forwarded such requests to the appropriate forum for consideration and action in a more efficient manner).

(double counting of aggravating factors did not exist where the military judge’s instructions allowed double murder to be considered only once as an aggravating factor; CAAF also declines to adopt rule against double counting aggravating circumstances based on a single offense and substantially the same evidence as no such rule appears in RCM 1004 and is not required by the Due Process Clause of the Fifth Amendment).

(requirement for trial by members in a capital case does not violate the Fifth and Eighth Amendment guarantee of due process and reliable verdict; see United States v. Loving, 41 MJ 213, 291 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

(capital court-martial in peacetime by a court-martial panel composed of fewer than twelve members does not deny accused due process of law under the Fifth, Sixth, and Eighth Amendments; see United States v. Loving, 41 MJ 213, 287 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

(the appropriate test to apply to determine whether a court-martial procedure violates due process is to ask whether the factors militating in favor of overturning that procedure are so extraordinarily weighty as to overcome the balance struck by Congress).

(appellant was entitled to no relief on claim that limitation on enlisted members of the accused’s unit serving on the accused’s court-martial violated due process; appellant failed to show that the factors militating in favor of overturning that limitation are so extraordinarily weighty as to overcome the balance struck by Congress).

(the lack of a system which designates minimum standards of qualification for defense counsel in capital cases was not shown to have denied appellant due process; see United States v. Loving, 41 MJ 213, 298-299 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

(voting procedures instructions which required members to vote first on the charged offense before voting on any lesser-included offenses was based on RCM 921(c)(5), and CAAF perceived no real prejudice arising from this voting procedure; moreover, appellant failed to make a legally sufficient denial of due process argument in this regard).

(in light of the traditional practice at courts-martial, instructions reflecting that members have “equal voice”, and instructions condemning the influence of superiority in rank, appellant failed to establish a due process violation resulting from designation of the senior member as the presiding officer pursuant to RCM 502(b)(1)).