FIRST PRINCIPLESConstitutional Matters: Right to Present a Defense

2021 (October Term)

United States v. Beauge, 82 M.J. 157 (the right to cross-examine a witness for impeachment purposes has constitutional underpinnings because of the right to confront witnesses under the Sixth Amendment and the due process right to present a complete defense). 

2019 (October Term)

United States v. Hennis, 79 M.J. 370 (the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense). 

2018 (October Term)

United States v. Kohlbek, 78 M.J. 326 (a rule permitting a per se ban on unreliable evidence in the military justice system is neither an arbitrary nor a disproportionate restriction on an accused’s Sixth Amendment right to present evidence in his defense).

2017 (October Term)

United States v. Armstrong, 77 M.J. 465 (to prepare a defense, the accused must have notice of what the government is required to prove for a finding of guilty; the charge sheet provides the accused notice that he or she will have to defend against any charged offense and specification).

2015 (September Term)

United States v. Bess, 75 M.J. 70 (it is undeniable that a defendant has a constitutional right to present a defense). 

(whether rooted directly in the Due Process Clause or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense). 

(the right to present a defense has many aspects; under the Compulsory Process Clause, a defendant has a right to call witnesses whose testimony is material and favorable to his defense; a defendant’s Sixth Amendment right to confront the witnesses against him is violated where it is found that a trial judge has limited cross-examination in a manner that precludes an entire line of relevant inquiry; in addition, the Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor). 

(the right to present relevant testimony is not without limitation; the right may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process; this balance is bounded on the one hand by the broad discretion of trial judges and rulemakers’ broad latitude under the Constitution to establish rules excluding evidence from criminal trials and on the other by the Constitution’s guarantee of a meaningful opportunity to present a complete defense). 

(while the military judge has broad latitude to control cross-examination, giving controverted evidence to the factfinder with no opportunity for the accused to examine or cross-examine witnesses or in any way to rebut that evidence in front of the members is unprecedented in our legal system, and cannot be reconciled with due process).

(in this case, the military judge’s giving  muster reports to the court members without affording appellant an opportunity to cross-examine the government witness who laid the evidentiary foundation for their admissibility, to call a defense rebuttal witness, or to have his counsel comment on the new evidence in front of the members deprived appellant of his constitutionally protected ability to present a complete defense, and constituted an abuse of discretion by the military judge; the relevant witnesses were available, appellant’s evidence and cross-examination were relevant to the evidentiary weight the court members should afford the muster reports, and it would have been relatively easy to allow the parties to comment on the government’s altered case; failure to give appellant these opportunities to challenge the reliability of the muster reports before the factfinder violated his constitutional rights where those reports provided some evidence of the identity of the alleged perpetrator of the charged offenses). 

(admitting evidence without allowing the parties to dispute the reliability of that evidence before the factfinder cannot be reconciled with Fifth Amendment due process, or the protections of the Sixth Amendment). 

(in this case, the military judges’ error in precluding appellant from challenging the evidentiary weight of the muster reports provided to the court members after they requested this evidence during their deliberations was not harmless beyond a reasonable doubt where one of the main issues at trial was the identity of the alleged perpetrator and challenging the evidentiary weight of the muster reports could have shaken the government’s case with respect to the identity of appellant as the perpetrator; given the interest that the reports clearly provoked among the members (asking for the reports during deliberations after the defense counsel in closing argument had emphasized the government’s failure to introduce the reports as a significant weakness in its case), and the timing of the verdict (a half-hour after receiving the reports and nearly six hours after deliberations had begun), it simply cannot be said that that the error did not contribute to the verdict beyond a reasonable doubt; as such, the denial of appellant’s right to present a complete defense was not harmless beyond a reasonable doubt).  

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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