2023 (October Term)
United States v. Leipart, 85 M.J. 35 (the Fifth Amendment guarantees that no person shall be compelled in any criminal case to be a witness against himself; in a guilty plea context, a military judge who has advised an accused that he is waiving his right against self-incrimination only to those offenses to which he is pleading guilty cannot later rely on those statements as proof of a separate offense; neither the guilty plea itself nor any related statements as to one offense may be admitted to prove any element of a separate offense; to do so would compel an accused to incriminate himself in the separate criminal proceeding).
United States v. Tapp, 85 M.J. 19 (an accused has a constitutional right to an impartial judge).
United States v. Hasan, 84 M.J. 181 (without question, the Sixth-Amendment right to a public trial is applicable to courts-martial; in addition to the Sixth Amendment, there is a regulatory right to open courts-martial in RCM 806; despite this general rule, both the Sixth Amendment and RCM 806 make exceptions to the right to have a public trial, but any exclusion must be used sparingly with the emphasis always toward a public trial).
United States v. Ramirez, 84 M.J. 173 (a constitutional requirement exists to inquire into the possible racial prejudice of potential jurors in cases where racial issues are inextricably bound up with the conduct of the trial; absent such circumstances, the Constitution leaves it to the trial court, and the judicial system within which that court operates, to determine the need for such questions; only when there are more substantial indications of the likelihood of racial or ethnic prejudice affecting the jurors in a particular case does the trial court's denial of a defendant's request to examine the jurors' ability to deal impartially with this subject amount to an unconstitutional abuse of discretion; other circumstances might exist that suggest an inquiry into racial bias is necessary but the decision as to whether the total circumstances suggest a reasonable possibility that racial or ethnic prejudice will affect the jury remains primarily with the trial court, subject to case-by-case review by the appellate courts).
(there is no constitutional presumption of juror bias for or against members of any particular racial or ethnic groups, and there is no per se constitutional rule in such circumstances requiring inquiry as to racial prejudice).
2022 (October Term)
United States v. Anderson, 83 M.J. 291 (courts-martial accuseds do not have a right to a unanimous guilty verdict under the Sixth Amendment, the Fifth Amendment Due Process Clause, or the Fifth Amendment component of equal protection).
(the Sixth Amendment right to a jury trial does not apply to courts-martial).
(in the absence of a Sixth Amendment right to a jury trial in the military justice system, appellant had no Sixth Amendment right to a unanimous verdict in his court-martial).
United States v. Kim, 83 M.J. 235 (when a charge against a servicemember may implicate both criminal and constitutionally protected conduct, the distinction between what is permitted and what is prohibited constitutes a matter of critical significance).
2020 (October Term)
United States v. McPherson, 81 M.J. 372 (a statute cannot revive an expired period of limitations because to do so would be an unconstitutional violation of the Ex Post Facto Clause).
United States v. Begani, 81 M.J. 273 (the Constitution gives Congress the power to set rules for the land and naval forces).
United States v. Upshaw, 81 M.J. 71 (where there is instructional error with constitutional dimensions, an appellate court tests for prejudice under the standard of harmless beyond a reasonable doubt; this standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction).
2019 (October Term)
United States v. Bergdahl, 80 M.J. 230 (the Constitution affords all accused the presumption of innocence).
United States v. Blackburn, 80 M.J. 205 (when constitutional rights are at issue, an appellate court applies a presumption against finding waiver).
United States v. Prasad, 80 M.J. 23 (where constitutional error contributes to a conviction, the conviction cannot stand).
United States v. Wall, 79 M.J. 456 (ripeness is the state of a dispute that has reached, but has not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made; the doctrine’s basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties; the problem is best seen in a twofold aspect, requiring a court to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration).
(the ripeness doctrine originates in the Constitution’s Article III case or controversy language; nevertheless, Article I courts, such as the CAAF, generally adhere to this doctrine and ordinarily decline to consider an issue that is premature; if the appeal is not ripe, it deprives the court of subject matter jurisdiction and must be dismissed).
2018 (October Term)
United States v. Tovarchavez, 78 M.J. 458 (Article 59(a), UCMJ, provides that a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; just as a substantial right can be either constitutional or nonconstitutional, material prejudice for purposes of Article 59, UCMJ, must be understood by reference to the nature of the violated right).
(where a forfeited constitutional error was clear or obvious, material prejudice is assessed using the harmless beyond a reasonable doubt standard; that standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction).
(in the context of both preserved and unpreserved nonconstitutional errors, appellate courts consider whether there is a reasonable probability that, but for the error, the outcome of the proceedings would have been different; for constitutional errors, rather than the probability that the outcome would have been different, courts must be confident that there was no reasonable possibility that the error might have contributed to the conviction).
(when an appellate court reviews a constitutional issue for plain error, the prejudice analysis considers whether the error was harmless beyond a reasonable doubt).
(whether preserved or forfeited error, a finding or sentence may only be corrected for interference with a substantial right involving an error of law; where the error is constitutional, the government must show that the error was harmless beyond a reasonable doubt to obviate a finding of prejudice).
(an appellate court applies the harmless beyond a reasonable doubt standard when assessing prejudice for a forfeited constitutional error under Article 59, UCMJ).
(there is no legitimate military justification for interpreting material prejudice under Article 59(a), UCMJ, differently for preserved and forfeited constitutional errors).
United States v. Briggs, 78 M.J. 289 (applying a new statute of limitations to revive a previously time-barred prosecution violates the Constitution’s Ex Post Facto Clause).
2017 (October Term)
United States v. Jones, 78 M.J. 37 (an appellate court applies a presumption against finding a waiver of constitutional rights).
(a waiver of a constitutional right is effective if it clearly established that there was an intentional relinquishment of a known right).
(in certain and exceptional circumstances, counsel may waive a constitutional right on behalf of a client).
(when a constitutional issue is reviewed for plain error, the prejudice analysis considers whether the error was harmless beyond a reasonable doubt).
United States v. Williams, 77 M.J. 459 (where constitutional instructional error is preserved, an appellate court tests for harmlessness; however, if the accused fails to preserve the instructional error by an adequate objection or request, the court tests for plain error).
(the use of charged conduct as propensity evidence under MRE 413 for other charged conduct in the same case prejudices an accused’s constitutional right to be presumed innocent until proven guilty, regardless of the forum, the number of victims, or whether the events are connected; an accompanying propensity instruction is likewise constitutional error).
United States v. Mangahas, 77 M.J. 220 (it is a long-established principle that federal courts will avoid a constitutional question if the issue presented in a case may be adjudicated on a nonconstitutional ground; this is true even where the nonconstitutional ground, although raised at trial, is not raised by the parties on appeal).
United States v. Chisum, 77 M.J. 176 (a constitutional error is harmless when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained; to say that an error did not contribute to the ensuing verdict is not, of course, to say that the jury was totally unaware of that feature of the trial later held to have been erroneous, but rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record).
(when an error constitutes a constitutionally improper denial of a defendant’s opportunity to impeach a witness for bias, an appellate court’s harmless beyond a reasonable doubt review includes weighing the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case).
2016 (October Term)
United States v. Oliver, 76 M.J. 271 (while there is a presumption against the waiver of constitutional rights, an appellant may waive the right to raise such issue on appeal provided it is clearly established that there was an intentional relinquishment or abandonment of a known right).
(an error in charging an offense is not subject to automatic dismissal, even though it affects constitutional rights; an appellant must show that under the totality of the circumstances in his case, the government’s error resulted in material prejudice to his substantial, constitutional right to notice).
2015 (September Term)
United States v. Hoffmann, 75 M.J. 120 (where the error by the military judge in admitting evidence on the merits was of constitutional dimension, the error is harmless only when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained; to say that an error did not contribute to the ensuing verdict is not, of course, to say that the jury was totally unaware of that feature of the trial later held to have been erroneous; to say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record).
United States v. Busch, 75 M.J. 87 (the Constitution forbids the passage of ex post facto laws, a category that includes every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed).
United States v. Riggins, 75 M.J. 78 (where a conviction violated appellant’s constitutional rights to notice and to not be convicted of a crime that is not a lesser included offense of the offenses with which he was charged, such a constitutional error does not require automatic reversal, but instead is tested for prejudice).
2014 (September Term)
United States v. Castillo, 74 M.J. 160 (to successfully advance a facial challenge to the constitutional validity of a statute or regulation, the challenger must establish that no set of circumstances exists under which the regulation would be valid).
United States v. Bennitt, 74 M.J. 125 (an accused has a right to be tried and heard on the specific charges of which he is accused).
United States v. Piolunek, 74 M.J. 107 (if in fact a conviction rests on an unconstitutional statute or legal theory, it is at best questionable why or how the weight of the evidence overcomes that constitutional infirmity).
(in Stromberg v. California, 283 US 359 (1931), jurors were told that they could convict the appellant under any of three clauses of a statute; the jury returned a general verdict without specifying the clause under which it had convicted; the Supreme Court found one of the three clauses to be unconstitutional on grounds of vagueness and ruled that the conviction of the appellant, which so far as the record discloses may have rested upon that clause exclusively, must be set aside; Stromberg applies only where members may have convicted on the basis of an unconstitutional statute or legal theory; that is not this case, as neither the statute nor the legal theory presented to the members was constitutionally infirm).
(images that meet the Child Pornography Prevention Act of 1996’s definition of child pornography are not constitutionally protected).
United States v. Jones, 74 M.J. 95 (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 that person’s appointment or election to the office is deficient; the doctrine does not apply when the officer’s deficiency is fundamental).
(in this case, a judge on the CCA was purportedly appointed as an appellate military judge first by the Judge Advocate General of the Air Force, and then by the Secretary of Defense; these appointments were invalid under the Appointments Clause of the Constitution, U.S. Const. art. II, § 2, cl. 2; because the defect in this appointment was not merely technical, but fundamental, the de facto officer doctrine cannot apply; defects that are “merely technical” and may be forfeited if not timely raised; however, those defects that embody a strong policy concerning the proper administration of judicial business are not forfeited if not timely raised; here, the error was of constitutional dimensions - certainly “fundamental” by any reckoning).
(where the purported appointment of an appellate military judge by the Secretary of Defense was wholly without statutory authority because such an appointment was required to be made by the President, with Senate advice and consent, as provided in the Appointments Clause, the appointment was in fundamental constitutional error; as such, neither forfeiture nor the de facto officer doctrine applied).
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).
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).
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).
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).
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).
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).
(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).
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)).