FIRST PRINCIPLESConstitutional Matters: Due Process


2013 (September Term)

United States v. Warner, 73 M.J. 1 (it is settled that a servicemember may be prosecuted for service-discrediting conduct under the general article, Article 134, UCMJ, even if the conduct is not specifically listed in the MCM;  however, due process requires that a servicemember have fair notice that his conduct is punishable before he can be charged under Article 134 with a service discrediting offense; potential sources of fair notice may include federal law, state law, military case law, military custom and usage, and military regulations). 

(in this case, a due process error - charging appellant with conduct that he lacked fair notice was subject to criminal sanction - was obvious under current law where it was well settled at the time of his court-martial that a servicemember must have fair notice that an act was criminal before being prosecuted; appellant further suffered material prejudice to his substantial rights because he stands convicted of conduct as to which he lacked notice).

United States v. Merritt, 72 M.J. 483 (due process entitles convicted servicemembers to a timely review and appeal of court-martial convictions). 

(as a matter of due process, a service member must have fair notice that his conduct is punishable before he can be charged under Article 134 with a service discrediting offense; such notice is found in the MCM, federal law, state law, military case law, military custom and usage, and military regulations).    

2012 (September Term)

United States v. Salyer, 72 M.J. 415 (Article 37, UCMJ, states that no person subject to the UCMJ may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any member thereof; while statutory in form, the prohibition can also raise due process concerns, where for example unlawful influence undermines a defendant’s right to a fair trial or the opportunity to put on a defense). 

United States v. Jasper, 72 M.J. 276 (a military judge’s erroneous ruling  that the alleged sexual abuse victim and her mother had not waived the clergy privilege of MRE 503, a privilege that protected the alleged victim’s statement to her pastor that she had made up her sexual abuse allegations against appellant to get attention, violated appellant’s rights to confrontation and due process, given that (1) the alleged victim’s testimony was critical to the government’s case, (2) the erroneous exclusion of the alleged victim’s exculpatory statements prevented appellant from exposing the alleged nefarious motivation behind her allegations and testimony, and (3) appellant’s theory of the case was that both his wife and the alleged victim were lying; the military judge’s ruling prevented appellant from using the alleged victim’s statements to impeach her credibility through cross-examination or otherwise; in addition, the military judge’s error prevented appellant from presenting the alleged victim’s exculpatory statements to the panel through the pastor’s direct testimony, depriving him of relevant, material, and vital testimony and evidence). 

United States v. Tunstall, 72 M.J. 191 (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; the Due Process Clause of the Fifth Amendment also does not permit convicting an accused of an offense with which he has not been charged). 

United States v. Coleman, 72 M.J. 184 (the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution). 

(the failure of the trial counsel to disclose evidence that is favorable to the defense on the issue of guilt or sentencing violates an accused’s constitutional right to due process; an appellate court reviews all such cases for harmless error - whether there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different). 

(a military accused has the right to obtain favorable evidence under Article 46, UCMJ, as implemented by RCM 701–703; Article 46 and its implementing rules provide greater statutory discovery rights to an accused than does his constitutional right to due process). 

United States v. Vazquez, 72 M.J. 13 (given the plenary authority of Congress, itself subject to the requirements of the Due Process Clause, to legislate in the area of rules relating to the rights of servicemembers at courts-martial, an appellate court must recognize that the choices made by Congress and the President in establishing the procedures for courts-martial under Article 29(b), UCMJ, and RCM 805(d) are entitled to a high degree of deference; while it is axiomatic that an accused is entitled to a fair trial, absent an argument that the statutory scheme is facially unconstitutional, or an accused demonstrating that it is unconstitutional as applied to him, an appellate court presumes that the statutory scheme established by Congress and implemented by the President constitutes both the parameters of what process is due and a fair trial in the military context). 

(servicemembers do not enjoy due process protections above and beyond the panoply of rights provided to them by the plain text of the Constitution, the UCMJ, and the MCM). 

(a fair trial in a fair tribunal is a basic requirement of due process). 

(there is no military due process right to have all members be presented with all evidence in the same way or the right to have the same jury present for the entire trial). 

United States v. Wilkins, 71 M.J. 410 (constitutional due process 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).

2011 (September Term)

United States v. Barberi, 71 M.J. 127 (where a general verdict of guilt is based in part on conduct that is constitutionally protected, the Due Process Clause requires that the conviction be set aside).

2010 (September Term)

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). 

(no principle of procedural due process is more clearly established than notice of the specific charge and a chance to be heard in a trial of the issues raised by that charge). 

United States v. Arriaga, 70 M.J. 51 (whether an appellant has been deprived of his due process right to a speedy appellate review is a question of law that an appellate court reviews de novo; to determine this, the court balances the four Barker/Moreno factors: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice; no single factor is required, but a facially unreasonable length of delay triggers the full analysis). 

(an accused has a constitutional due process right to a timely full and fair review of his findings and sentence). 

(even in the absence of specific prejudice, a constitutional due process violation for post-trial delay still occurs if, in balancing the other three factors, the delay is so egregious that tolerating it would adversely affect the public’s perception of the fairness and integrity of the military justice system; relief in such cases is provided unless an appellate court is convinced that the post-trial delay was harmless beyond a reasonable doubt; furthermore, the court may assume a due process violation and proceed straight to the harmless beyond a reasonable doubt analysis; finally, even in instances where post-trial delay was not harmless beyond a reasonable doubt, the court cannot provide relief where there is no reasonable, meaningful relief available).   

United States v. Girouard, 70 M.J. 5 (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; both amendments ensure the right of an accused to receive fair notice of what he is being charged with; but the Due Process Clause of the Fifth Amendment also does not permit convicting an accused of an offense with which he has not been charged). 

 

(the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged; thus, when all of the elements are not included in the definition of the offense of which the defendant is charged, then the accused’s due process rights have in fact been compromised). 

 

United States v. Lewis, 69 M.J. 379 (under the Due Process Clause of the Fifth Amendment, the government must prove a defendant’s guilt beyond a reasonable doubt). 

 

(an improper implication by the trial counsel that the defendant carries the burden of proof on the issue of guilt constitutes a due process violation; the limitation on comments regarding the burden of proof does not apply, however, in circumstances where the defense has the burden of proof on a particular matter, such as an alibi defense; likewise, the limitation on comments cannot be used by the defense as both a shield and a sword). 


United States v. Gooch, 69 M.J. 353 (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. Prather, 69 M.J. 338 (it is well established that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged). 


United States v. Soto, 69 M.J. 304 (a plea of guilty is more than an admission of guilt - it is the waiver of bedrock constitutional rights and privileges; under controlling Supreme Court precedent, it is, therefore, constitutionally required under the Due Process Clause of the Fifth Amendment that a judge ensure that a guilty plea be entered into knowingly and voluntarily; it is axiomatic that the military justice system imposes even stricter standards on military judges with respect to guilty pleas than those imposed on federal civilian judges). 


2009 (September Term)


United States v. Morton, 69 M.J. 12 (affirming a guilty plea based on admissions to an offense to which an accused had not in fact pleaded guilty and which was not a lesser included offense of the charged offense was inconsistent with traditional due process notions of fair notice). 


United States v. Jones, 68 M.J. 465 (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; if indeed an LIO is a subset of the greater charged offense, the constituent parts of the greater and lesser offenses should be transparent, discernible ex ante, and extant in every instance). 


(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). 


United States v. Anderson, 68 M.J. 378 (a trial is fundamentally unfair where the government’s conduct is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction).  


United States v. Neal, 68 M.J. 289 (the Due Process Clause of the Constitution protects an accused from conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged). 

 

(a legislature may redefine the elements of an offense and require the defense to bear the burden of proving an affirmative defense, subject to due process restrictions on impermissible presumptions of guilt). 


2008 (September Term)


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. 432 (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). 

 
2008 (Transition)

 

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).   

 
2007

 

United States v. Adcock, 65 M.J. 18 (an essential expression of the Constitution’s due process guarantee is the protection of accused servicemembers from punishment prior to conviction and sentencing).

 

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). 

 

2006

 

United States v. Toohey, 63 M.J. 353 (convicted servicemembers have a constitutional due process right to a timely review and appeal of courts-martial convictions). 

 

United States v. Harvey, 64 M.J. 13 (four factors determine whether post-trial delay violates due process rights:  (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of his right to a timely review; and (4) prejudice to the appellant; once this due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation).

 

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).

 

2005


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).

 

2004

 

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?).

 

2003

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).

Diaz v. The Judge Advocate General of the Navy, 59 MJ 34 (petitioner has a constitutional right to a timely appellate review guaranteed him under the Due Process Clause).

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

2002

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).

2001

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).

2000

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).

1999

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)).

(appellant’s due process claim that each member should sign the death sentence worksheet or that the condemned be afforded the opportunity to poll the members was not properly framed; in any event, the death penalty verdict must be unanimous; see United States v. Loving, 41 MJ 213, 296 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).


Home Page |  Opinions & Digest  |  Daily Journal  |  Scheduled Hearings  |  Search Site