FIRST PRINCIPLESConstitutional Matters: Generally

2013 (September Term)

United States v. Treat, 73 M.J. 331 (RCM 918(a)(i) explicitly authorizes a court-martial to make findings by exceptions and substitutions; however, at times this authority lies in tension with an accused’s constitutional right to receive fair notice of what he is being charged with).

United States v. Elespuru, 73 M.J. 326 (a waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege; there is a presumption against the waiver of constitutional rights, although no magic words are required to establish a waiver; the determination of whether there has been an intelligent waiver must depend, in each case, upon the particular facts and circumstances surrounding that case). 

United States v. Janssen, 73 M.J. 221 (military officers serving as trial and appellate military judges are not appointed in violation of the Appointments Clause because Congress has not, by statute, required a separate judicial appointment for them, and their judicial duties are not so distinct from their duties as military officers as to require separate appointments by the force of the Appointments Clause; their appointments as officers by the President, upon Senate advice and consent, suffice to satisfy the requirements of the clause). 

(civilian appellate military judges are “inferior Officers” within the meaning of the Appointments Clause of the Constitution, and the President shall nominate, and by and with the advice and consent of the Senate, shall appoint them; however, Congress may by law vest the appointment of such inferior officers in heads of departments).

(Congress has not “by law” specifically vested the Secretary of Defense, the head of a department, with the authority to appoint a civilian as an appellate military judge under the Appointments Clause; general, government-wide “housekeeping” statutes did not provide the necessary authority). 

(while Congress certainly has the authority under the Appointments Clause to authorize the Secretary of Defense to appoint civilian appellate military judges, either through general legislation granting authority to appoint inferior officers or specific legislation granting authority to appoint civilian appellate military judges, it has not done so; as such, the appointment of a civilian appellate military judge was required to be done by the President with Senate advice and consent, which is the default method for the appointments of inferior officers; where this was not done, the appointment of a civilian appellate military judge by the Secretary of Defense was invalid and of no effect). 

(although the de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of his appointment to office is deficient, in this case, where the Secretary of Defense invalidly appointed a civilian appellate military judge to the court of criminal appeals, the de facto officer doctrine was not applied because petitioner challenged the composition of the court while his case was still on direct review; applying the doctrine in such a case would create a disincentive to raise Appointments Clause challenges with respect to questionable judicial appointments). 

2012 (September Term)

United States v. Gaskins, 72 M.J. 225 (both the Fifth and Sixth Amendments ensure the right of an accused to receive fair notice of what he is being charged with). 

(the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted; an LIO meets this notice requirement if it is a subset of the greater offense alleged). 

United States v. Goings, 72 M.J. 202 (an appellant’s rights as a member of the military are not coextensive with those enjoyed by civilians). 

United States v. Riley, 72 M.J. 115 (waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences). 

United States v. Bowersox, 72 M.J. 71 (obscene material is unprotected by the First Amendment). 

(the States retain broad power to regulate obscenity; however, that power simply does not extend to mere possession by the individual in the privacy of his own home).

2011 (September Term)

United States v. Vela, 71 M.J. 283 (the Fifth Amendment’s privilege against self-incrimination provides that no person shall be compelled in any criminal case to be a witness against himself; immunity from the use of compelled testimony and evidence derived therefrom is coextensive with the scope of the privilege and is sufficient to compel testimony over a claim of the privilege). 

(prosecution of appellant on murder charge was not based on his immunized testimony in violation of Fifth Amendment’s privilege against self-incrimination; his immunized testimony did not reveal anything to the government not already known from his prior statements or suggest that appellant was considering an insanity defense, the investigation of appellant was completed prior to his immunized testimony, the decision to prosecute appellant was made long before he gave any immunized testimony, and the prosecutors in appellant’s case were not exposed to immunized testimony). 

United States v. Ali, 71 M.J. 256 (appellant, a foreign national working as a civilian contractor in Iraq who was tried outside the United States during a contingency operation for a crime committed outside the United States, did not have a substantial connection with the United States that entitled him to Fifth and Sixth Amendment protections, although he received brief predeployment training in the United States and was employed by a United States corporation; noncitizen aliens outside of the United States are not afforded the protections of the Fifth and Sixth Amendments when they have not come within the territory of the United States and developed substantial connections with it). 

(Congress has the power to declare war and to make rules for the government and regulation of the land and naval forces; these powers are separate and distinct sources of constitutional authority for congressional action; the necessary and proper clause cannot extend the scope of the power to make rules for the government and regulation of the land and naval forces).

United States v. Humphries, 71 M.J. 209 (while a specification that fails to properly allege an element of a charged offense is defective, and while such a defect affects constitutional rights, it does not constitute structural error subject to automatic dismissal).    

United States v. Easton, 71 M.J. 168 (Constitutional rights identified by the Supreme Court generally apply to members of the military unless by text or scope they are plainly inapplicable; in general, the Bill of Rights applies to members of the military absent a specific exemption or certain overriding demands of discipline and duty). 

(Constitutional rights in the Bill of Rights may apply differently to members of the armed forces than they do to civilians; the burden of showing that military conditions require a different rule than that prevailing in the civilian community is upon the party arguing for a different rule).   

(in courts-martial, there is no right to indictment by grand jury). 

(judicial deference is at its apogee when the authority of Congress to govern the land and naval forces is challenged; this principle applies even when the constitutional rights of a servicemember are implicated by a statute enacted by Congress). 

United States v. Barberi, 71 M.J. 127 (under appropriate circumstances, conduct that is constitutionally protected in civilian society could still be viewed as prejudicial to good order and discipline or likely to bring discredit upon the armed forces). 

(the longstanding common law rule is that when the factfinder returns a guilty verdict on an indictment charging several acts, the verdict stands if the evidence is sufficient with respect to any one of the acts charged; however, an exception to the general verdict rule is where one of the grounds of the conviction is found to be unconstitutional; if a factfinder is presented with alternative theories of guilt and one or more of those theories is later found to be unconstitutional, any resulting conviction must be set aside when it is unclear which theory the factfinder relied on in reaching a decision). 

(if, under the instructions to the members, one way of committing the offense charged is to perform an act protected by the Constitution, the rule requires that a general verdict of guilt be set aside even if appellant’s unprotected conduct, considered separately, would support the verdict). 

(most constitutional errors, i.e. non-structural ones, constitute trial errors and are subject to harmless error review). 

(a constitutional trial error is not harmless beyond a reasonable doubt where there is a reasonable possibility that the evidence complained of might have contributed to the conviction; to say that an error did not contribute to the verdict is to find that error unimportant in relation to everything else the members considered on the issue in question, as revealed in the record; an error in admitting plainly relevant evidence which possibly influenced the members adversely to a litigant cannot be conceived of as harmless). 

United States v. Morrissette, 70 M.J. 431 (the Fifth Amendment’s privilege against self-incrimination provides that no person shall be compelled in any criminal case to be a witness against himself; however, the privilege against self-incrimination is neither absolute nor inviolate; a grant of testimonial immunity is the minimum grant of immunity adequate to overcome the privilege against self-incrimination provided by the Fifth Amendment to the Constitution and Article 31, UCMJ; neither the testimony of the witness nor any evidence obtained from that testimony may be used against the witness at any subsequent trial). 

(the government may compel a witness to testify under a grant of use or derivative-use immunity contrary to the witness’s Fifth Amendment privilege against self-incrimination; immunity from the use of the compelled testimony and evidence derived therefrom is coextensive with the scope of the privilege and is sufficient to compel testimony over a claim of the privilege). 

(because the purpose of the Fifth Amendment privilege against self-incrimination is to afford protection against being forced to give testimony leading to the infliction of penalties affixed to criminal acts, testimonial immunity only applies to compelled testimony and not all statements made by an accused; further, for a communication to be considered testimonial, it must, explicitly or implicitly, relate a factual assertion or disclose information). 

2010 (September Term)

United States v. Sweeney, 70 M.J. 296 (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 of a known right or privilege). 

United States v. Gaddis, 70 M.J. 248 (the constitutional interests of a civil defendant and a criminal defendant are distinct). 

United States v. Fosler, 70 M.J. 225 (the Constitution protects against conviction of uncharged offenses through the Fifth and Sixth Amendments; the Fifth Amendment provides that no person shall be deprived of life, liberty, or property, without due process of law, and the Sixth Amendment provides that an accused shall be informed of the nature and cause of the accusation). 

United States v. Phillips, 70 M.J. 161 (conviction of a criminal offense under the Constitution requires proof of every element of the offense beyond a reasonable doubt). 

(the use of conclusive presumptions to establish the elements of an offense is unconstitutional because such presumptions conflict with the presumption of innocence and invade the province of the trier of fact). 

United States v. Martinez, 70 M.J. 154 (an accused has a constitutional right to an impartial judge; RCM 902 recognizes this right). 

United States v. McMurrin, 70 M.J. 15 (structural errors are those constitutional errors so affecting the framework within which the trial proceeds that the trial cannot reliably serve its function as a vehicle for determination of guilt or innocence). 


United States v. Hartman, 69 M.J. 467 (constitutional rights may apply differently to members of the armed forces than they do to civilians).

 

United States v. Pope, 69 M.J. 328 (it is constitutional error to admit evidence of - or comment on in argument - an accused’s post-apprehension silence as evidence of guilt). 

 

(nontestimonial demeanor evidence does not trigger Fifth Amendment protections). 

 

United States v. White, 69 M.J. 236 (defendants do not have a constitutional right to present any and all evidence, but only that evidence which is logically and legally relevant). 


2009 (September Term)

United States v. Neal, 68 M.J. 289 (the Constitution precludes shifting the burden of proof from the government to the defense with respect to a fact which the State deems so important that it must be either proved or presumed in order to constitute a crime). 

 

(Congress has broad authority to define the elements of offenses under the constitutional power to make rules for the government and regulation of the armed forces). 


2008 (September Term)
 

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). 

 

United States v. Miller, 67 M.J. 385 (the Constitution requires that an accused be on notice as to the offense that must be defended against, and that only lesser included offenses that meet these notice requirements may be affirmed by an appellate court).

 

(the notice requirement is met when the elements of the lesser offense are a subset of the elements of the charged offense; an accused is by definition on notice of a lesser included offense because it is a subset of the greater offense alleged). 

 
(the principle of fair notice mandates that an accused has a right to know to what offense and under what legal theory he will be convicted and that a lesser included offense meets this notice requirement if it is a subset of the greater offense alleged; this precedent is consistent with the Constitution and Supreme Court precedent regarding due process). 


United States v. Gladue, 67 M.J. 311 (a criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution; that includes double jeopardy, the basis of the multiplicity objection). 

 

United States v. Stephens, 67 M.J. 233 (a rule or other provision of the MCM cannot sanction a violation of an appellant’s constitutional rights). 

 

(permitting a child victim’s father to testify during the government’s sentencing case about the effect the investigation and court-martial had on the victim was not a constitutional violation, where there was no explicit comment by the trial counsel or the father concerning appellant’s invocation of his constitutional rights to plead not guilty, confront the witnesses against him, and put the government to its proof, but rather, there was only a brief reference to the effect of the entire proceeding on the victim). 


2008 (Transition)
 

United States v. McIlwain, 66 M.J. 312 (an accused has a constitutional right to an impartial judge).

 

United States v. Greatting, 66 M.J. 226 (an accused has a constitutional right to an impartial judge). 

 

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).

 

2007

 
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).


2006

 

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. Harvey, 64 M.J. 13 (a court-martial is a public trial). 

 

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). 

 
2005


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)).


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