FIRST PRINCIPLESConstitutional Matters: Right to Present a Defense

2010 (September Term)

United States v. Jones, 69 M.J. 294 (a military judge’s denial of an accused’s request to review the government’s evidence of child pornography against him prior to and during his providence inquiry did not violate the accused’s Sixth Amendment to make a defense because the accused did not seek to review the evidence to prepare a defense; the accused retained at all times the right to withdraw from the pretrial agreement, plead not guilty, and require the government to prove the offenses against him; the accused sought to review the evidence of child pornography to assist him in pleading guilty, and not to assist him in his defense).


United States v. McAllister
, 64 M.J. 248 (just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense; this right is a fundamental element of due process of law). 

 (in light of the evidence derived from DNA re-testing and revealed at the DuBay factfinding hearing on remand, the military judge’s error in denying the accused’s request for expert DNA assistance and refusing to permit a re-test of certain evidence for the presence of DNA deprived the accused of his due process right to present evidence establishing a defense based on the discovery of DNA from three unidentified individuals on the victim’s fingernails).   


United States v. Kreutzer
, 61 M.J. 293 (compulsory process, equal access to evidence and witnesses, and the right to necessary expert assistance in presenting a defense are guaranteed to military accuseds through the Sixth Amendment, Article 46, UCMJ, 10 USC § 846, and RCM 703(d)).

(where a request for the expert assistance of a mitigation specialist is erroneously denied, that ruling implicates the right to present a defense, compulsory process, and due process conferred by the Constitution, the right to obtain witnesses and evidence conferred by Article 46, UCMJ, and the right to the assistance of necessary experts conferred by RCM 703(d)). 


United States v. Teffeau, 58 MJ 62 (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; few constitutional principles are more firmly established than a defendant’s right to be heard on the specific charges of which he is accused).


United States v. Jeffers, 57 MJ 13 (order to have no social contact with a named person did not inhibit appellant’s ability to prepare his defense; nothing in the order could have been interpreted as restricting appellant’s access to that person, a potential witness against him, so long as the meeting with that individual was official business, and there were no facts developed at trial, either through motions, objections or testimony, that showed the order interfered with an attorney-client relationship, or impaired defense counsel’s trial preparation).


United States v. Dimberio, 56 MJ 224 (a defendant has a constitutional right to present a defense, including compulsory due process to compel the attendance of defense witnesses and the right to introduce their testimony into evidence).

(the Equal Protection Clause, Due Process Clause, and the Manual for Courts-Martial each provide that the servicemember- accused is entitled to expert assistance when necessary for an adequate defense).

(the Constitution does not confer upon an accused the right to present any and all types of evidence at trial, but only that evidence which is legally and logically relevant).

(although expert opinion evidence of a psychiatric diagnosis or personality disorder does not fit within the exceptions noted in Mil.R.Evid. 404(a), the accused nonetheless has a constitutional right to introduce the evidence if it is otherwise legally and logically relevant under Mil.R.Evid. 401-403).

(rules such as Mil.R.Evid. 403 and 404(a) that exclude evidence from criminal trials do not abridge an accused’s constitutional right to present a defense so long as they are not arbitrary or disproportionate to the purposes they are designed to serve and do not infringe upon a weighty constitutional interest of the accused).


United States v. Browning, 54 MJ 1 (the constitutional right to present evidence to defend against charges is not absolute).


United States v. Lewis, 51 MJ 376 (appellant was prejudicially chilled in the presentation of his defense case where military judge erroneously held view that RCM 701(b)(2) required presentation of corroborating witnesses in order to establish innocent ingestion defense and thereby:  (1) prevented appellant from introducing evidence which could have rebutted the government’s circumstantial case on the issue of knowledge; (2) would not permit defense counsel to introduce any evidence that some person may have had a motive to contaminate appellant’s drink on certain nights; (3) prevented persuasive argument on this specific defense theory; and (4) failed to instruct the members that the government had the burden with respect to the circumstantial defense evidence of innocent ingestion actually admitted, as well that which was erroneously excluded).

United States v. Jones, 52 MJ 60 (the Fifth Amendment, Article 31(a) and (d), UCMJ, the warning requirements, and the Sixth Amendment right to confrontation have the combined effect of requiring that a criminal defendant be afforded a meaningful opportunity to present a complete defense).

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