Putting compulsory back in compulsory process

• Author: Clay A. Compton
• Position: Judge Advocate, U.S. Army
• Pages: 133-181

2013] COMPULSORY PROCESS 133

PUTTING COMPULSORY BACK IN CUMPULSORY PROCESS

MAJOR CLAY A. COMPTON

In questions of power, let no more be heard of

confidence in man, but bind him down from mischief by

the chains of the Constitution.1

I. Introduction

Private (PVT) Smith is accused of raping a fellow Soldier by force.2

Defense counsel is detailed to the case and subsequently interviews

numerous witnesses, including the doctor who performed the sexual

assault examination on the alleged victim and the doctor who examined

PVT Smith for defensive wounds the alleged victim claims she inflicted

upon him.

Pursuant to Rule for Courts-Martial (RCM) 703(c)(2)(B),3 the

defense provides the prosecutor a synopsis of expected testimony of all

witnesses requested for trial. In doing so, the defense is forced to reveal

its theme and theory of the case. Specifically, the defense must reveal its

theory as to the alleged victim’s motive to fabricate and PVT Smith’s

 Judge Advocate, U.S. Army. Presently assigned as Brigade Judge Advocate, 2d

Armored Brigade Combat Team, 1st Infantry Division, Fort Riley, Kansas. LL.M., 2012,

The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia; J.D., 2003,

University of Oklahoma; B.B.A., 1999, University of Oklahoma. Previous assignments

include Office of the Staff Judge Advocate, 7th Infantry Division and Fort Carson, Fort

Carson, Colorado, 2003–2006 (Legal Assistance Attorney, Administrative Law Attorney,

Operational and International Law Attorney, and Special Assistant United States

Attorney); Defense Counsel, Bamberg, Germany, and Baghdad, Iraq, 2006–2009;

Training Officer, Defense Counsel Assistance Program, Arlington, Virginia, 2009–2011.

Member of the bars of the State of Oklahoma, the United States Court of Appeals for the

Armed Forces and the United States Supreme Court. This research paper was submitted

in partial completion of the Master of Laws requirements of the 60th Judge Advocate

Officer Graduate Course.

1 THOMAS JEFFERSON. THE PAPERS OF THOMAS JEFFERSON, VOLUME 30: 1 JANUARY 1798

TO 31 JANUARY 1799—RESOLUTIONS ADOPTED BY THE KENTUCKY GENERAL ASSEMBLY

(1798), available at http://www.princeton.edu/~tjpapers/kyres/kyadopted.html

(last visited Sept. 3, 2013).

2 Private Smith’s case is a real case, not a hypothetical. The author was detailed to

represent this Soldier facing multiple charges, the most serious being rape. The name of

the accused has been changed in this article to protect his privacy, but the facts are real.

3 MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 703 (2012) [hereinafter

MCM].

134 MILITARY LAW REVIEW [Vol. 215

personality traits which led him to “confess” to a crime he did not

commit. The prosecution promptly denies the majority of requested

witnesses, including the doctor who performed the sexual assault

examination of the alleged victim and the doctor who examined PVT

Smith for defensive wounds.

These denials are not based on the defense’s lack of compliance with

RCM 703. Rather, the prosecutor determines, in his sole discretion, that

the requested witnesses are not needed for trial. Specifically, the two

requested doctors and other character and fact witnesses are denied by

the prosecutor because he deems these witnesses irrelevant to the rape

case. The prosecutor provides no further explanation or detail as to why

these witnesses are irrelevant; he simply denies each witness.

The case is then delayed while defense counsel submits a motion to

compel production of these crucial witnesses under RCM 906(b)(7).4

After the motions hearing, the military judge orders the government to

produce each witness requested by the defense. After this back-and-forth,

PVT Smith is finally able to present his witnesses at trial and is

ultimately vindicated by the panel who finds him not guilty of all charges

and specifications. This seemingly random denial of necessary witnesses

prompts the question: should a military accused be forced to subject

himself to this level of gamesmanship from the government who is

seeking to deprive him of his liberty and property? Is it fair to the

accused that he be forced to provide the prosecutor a synopsis of the

witnesses’ expected testimony when the government does not have to

reciprocate? The Constitution says no, and so should our sense of

fairness and decency.

The Compulsory Process Clause of the Sixth Amendment

(Compulsory Process Clause) mandates that the accused, in a criminal

trial, have the right “to have compulsory process for obtaining witnesses

in his favor.”5 However, RCM 703 significantly and unconstitutionally

4 Id. R.C.M. 906(b)(7) (Motions for appropriate relief. Discovery and production of

evidence and witnesses).

5 U.S. CONST. amend VI.

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, which district shall

have been previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with the

2013] COMPULSORY PROCESS 135

restricts this fundamental constitutional right. For a military accused to

actually be afforded an opportunity to invoke the right of compulsory

process, the President has mandated that the accused submit his witness

list, along with a summary of the expected testimony, to the prosecutor.

After obtaining a preview of the defense case through the synopses of

every defense witness, the prosecutor is empowered to determine

whether the witnesses will actually be produced for the accused at trial.

If the witness is denied, the accused can litigate the matter before the trial

judge, but only after tipping off the prosecutor to the defense’s trial

strategy.

Part II of this article discusses the history of compulsory process as it

found its way into the adversarial process at common law and its

importance to the drafters of the U.S. Constitution. It details the

application of compulsory process during colonial times to help discern

the intent behind the drafters’ inclusion of this right in the Sixth

Amendment. It addresses the notion that the Compulsory Process Clause

represents the teeth behind which a criminal defendant actually exercises

his “right to present a defense.”6 It also explores the Supreme Court’s

modern interpretation of the Compulsory Process Clause.

Part III of this article examines current procedures for implementing

the Compulsory Process Clause. It analyzes the requirements set forth in

the Federal Rules of Criminal Procedure (FRCP), and contrasts them

with the restrictions imposed on a military accused under the Rules for

Courts-Martial. It discusses RCM 703’s violations of the Sixth

Amendment’s Compulsory Process Clause, the Fifth Amendment’s Due

Process Clause7 (Due Process Clause), and Articles 368 and 469 of the

witnesses against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Counsel for his

defence.

Id. (emphasis added). Forty-eight states have also implemented provisions in their state

constitutions that provide for compulsory process. See Peter Westen, The Compulsory

Clause, 73 MICH. L. REV. 71, 73 n.1 (1974).

6 Washington v. Texas, 388U.S. 14, 19 (1967); see also Janet C. Hoeffel, The Sixth

Amendment’s Lost Clause: Compulsory Process, 2002 WIS. L. REV. 1275, 1276 (2002).

7 “No person shall be . . . deprived of life, liberty, or property without due process of

law.” U.S. CONST. amend V.

8 UCMJ art. 36 (2012) provides:

(a) Pretrial, trial, and post-trial procedures, including modes of proof,

for cases arising under this chapter triable in courts-martial, military