The Defendant's Right to Obtain Evidence: An Examination of the Military Viewpoint

• Author: Major Arnold I. Melnick
• Pages: 01

him prescribed by Presidential regulation in the current Manunl for Coiirts-Martial, but that this procedure has been formally approved by the Enited States Court of Military Appeals in a definitive opinion:

In United Statoil 28. DeAnpela, 3 USCHI 298, 12 CMR 64, this Court held that before compulsory process to compel attendance wiil issue "the teatimons of any ritnesr requested by the defense must be Shawn to be both matenal and necessary, as B eandirron precedent to the issuance of process to campel hi3 attendance" Whether a requested witness' testimony is bath material and necessary is a wesfion to be determined by the partreular facts of the individual ca%e.l0

Finally, should counsel paint out that the financial resouree~ of his military client permit him ta absorb the costs of obtaining the witnesses he desires, his position would not be improved one whit, for the proeedure set forth in the llanual does not distinguish be-tween witnesses obtained at the expense of the United States and those whose expenses are met by the accused."

But the conundrum which faces defense counsel is not limited to what he may consider to be premature disclosure of his client's evidence. Even though he fully complies with the procedural re-quirements of the Manual, he has no assurance that either the convening authority or the law officer will authorize his subpoenas. The accused's burden is substantive as well as procedural, and he must satisfy the law officer or convening authority that the witnesses he seeks are, in fact, necessary and material to his case.lQ Should he be denied, the accused map raise the issue of denial of process on appeal. However, this will not improve his situation significantly since the Court of lIilitarg Appeals and boards of review have made It clear that they will not reverse an unfavorable ruling unless satisfied that the accused has demonstrated that the witnesses desired are material and necessary.'8

10 united States V. Harvey, 8 U.SC.M.A. 538, 543, 25 C.M.R. 41. 47 (1957).

11 See MCM 1961, para. 115a; oi. United States Y. Harvey, SUP70 note 10

(dterna;ive hhding). Indeed, theie i s no procedure for the sitness to be paid by the government, and the government to then be reimbursed by the de. fendant, the ordinary eiviiian practice. Compare

Unfortunately, one may not readily ascertain what this burden of persuasion encompasses. far while military appellate tribunals consistently evoke the rule, they hare done little to define it and reeoive the subsidiary issues it raises. The Court of Military Ap-peals on one occasion expressed the view that if an accused would be entitled to directly present te8timony of the requested wit-nesses at trial, his suhpwna should be granted." It has also Suggested that appellate review should be concerned only with abuse of discretion in denying process.'j For the most part, however, the Court and baards of review have not utilized either approach; instead they have evaluated the requests for process against the record of the completed trial and all the information available on appeal, and using some unrecorded standard, determined for themselves whether the requested witnesses jvere matenal and necessary. la Examination of the recorded opinions indicates that more often than not, they have found the accused's request to be wanting.

As a consequence those who must make the practical decisions, the accused, counsel, the law officer and the convening authority have been left iwthout objective criteria to guide them. It does not appear unfair to observe that in the current state of the law whether in any particular case the accused has met his burden and is entitled to process remains a gamble for the accused, and a matter of speculation for the law officer and convening authority, to be resolved by each upon the basis of their subjective evaluation of the evidence presented and the surrounding facts.

In sum then, not only must ths accused justify his request for compdsory process, but the burden he must meet is far from clearly defined. It Seems worthwhile to reiterate that in theory, et least, this rule applies to military witnesses as well as to their civilian counterparts, and to those close at hand as well as those iaeated at Some distance from the place of trial. The rule also encompasses all dacumentaiy evidence desired by the defense.'' Significantly, the converse situation does not exist so that while trial counsel is enjoined to procure only material prosecution

See Unlted States Y. Thornton, supro note 13.

IbUnited States V. Thornton. 8 U.S.C.M.A. 446, 450, 24 C.M.R. 266, 260 11969) (dissenting apmon).

14 See United States 7 , Harley, 6 U.S C.M.A. 638, 25 C.M.R. 42 (1961); ACM 10060. Graalum, 19 CMR. 661, pet. dented. 6 U.S.C.M.A. 813, 18C.M.R.

413 (18%) : WC KCM 60-00871, Cunningham, 30 C.M.R. 698 (19801 wv'd on otliri grounds. 12 U.S.C.M.A. 402, 30 C.M.R. 402 (1961): ACM 16112. Shelby, 28 C.N.R. 826 (1960)i cf, United State8 V. De Angelis, 8U.S.C..M.A. 296. 12 C.M.R. 64 11953).

DEFEKDASTS RIGHT TO EVIDENCE

witnesses, he need not Secure approval of his decisions in this regard, least of all from the accused or his attorney.18

It is true, of course, that once an accused has complied with the Manual and established that the witnesses he desires are material and necessary to his case, he is entitled ta their personal presence, and he cannot be required to accept a deposition or stipulation as a substitute.lQ But this is a dearly purchased right, and it has been acquired at the price of revealing the accused's case and trial stratem to the Government.

It is also true that in many commands, the Manual requirements are not closely enforced and compulsory process is made available ta the accused without any preliminary disclosure. While such treatment is enlightened and desirable, it does not make the instant inquiry any leas valid. Assuming that they are proper, the local adoption of less demanding rules is purely discretimar?. While they may be evidence that the 3lanual is not practical. or is too strict, they cannot deprive the Xanual rule of the force and effect of law or bar its application whenever desired. Further, one need only casually examine the reported cases to become aware that the Manual rule is. in fact, videly utilized.

One mag well understand the neophyte military practitioner's alarm when he learns of these limitations on his client's ability to obtain compulsory process. Indeed, even the experienced militaw counsel map become uneasy when he is reminded of the full impact of the Xanual ruler. The United States has undertaken to exercise complete and exclusive control over the means by which a military accused may obtain the evidence he requires for his defense. It is a control which is so broad that if enforced literally, it must handicap the accused in the presentation af his case, even in the beat af circumstances.

To state the rule is sufficient to raise Some doubt as to its propriety, far it appear8 to strike at the very heart of our adversary concept of justice.20 Such broad authority may well be justified, but it should not be accepted uncritically. Some healthy skepticism is particularly appropriate here as this control is battomed solely an an Executive directive rather than any statute or provision of the ConstitutimZ1 This is not to say that further

18 MCM, 1961, para. 115a; el. State 5.. Reyes. 209 Or. 535, 633, 303 P.2d 18 See Cnited States Y. Thornton. 3 U.S.C.M.A. 446, 24 C M.R. 266 (1957). 20 Compare, e.#, Watts T. Indiana. 338 US 49 (1949) i United States Y. 21 Compare United Stater v Smith, IS U S.C.M.A. 105, 32 C.M.R.

132, 137 11357).

Tellier, 13 U S C M.A. 323, 323, 32 C.M.R. 325 (1962).

(1962)

lioo BBOlB

examination will not reveal that the military rule is based onadequate legal precedent and satisfies a real military need: how-ever. it is important that the military services engage in careful self-analysis of their procedures since the limited scope of appellate review by non-military agencies heightens their moral obligation to police their own conduct and refrain from exceeding the limitations of their authority.zz In addition, the several Congressional revisions of our disciplinary articles within the last 40 years. with their attendant criticism of military justice, suggest that there are cogent practical reasons for such self-discipline.23

Accordinglv. further examination of the present military treatment of compulsory process appears to be both B valuable and a valid undertaking. \Ye shall begin our challenge of the present rule with an evaluation of the rules utilized by similarly situated practitioners in civilian courts. An examination of the historical origins, and subsequent development of the military rule is rele-\ant also, for despite the recent statutory revisions, many of our present concepts and procedures are direct descendants of institutions long forgotten. and may be understood only by referring back to them.*' Finally, we shall explore the applicable practical considerations unique to the military environment, and consider the constitutional standards. if any, ne must honor.

111. THE CURRESTRCLEISTHEFEDERALCOURTS

It may be expected that the reader will soon challenge the basic premise of this article and protest that the military practice concerning compulsory process is not exceptional, but parallels similar procedures in civilian coui~s. In answer the writer submits that whatever similarity there may be between the military rule lian practice is of a superficial nature. Careful als that the law in the federal courts, the touch- ** See Hrarmgs Ptcrsunnt :a S. Res. 260 on Conalifutionai Rights 01 Ydi-iary Piinonnrl Beiam +lie Subcommittee on Conat%lufional Rtgbtf of the Senate Cmnmzftrt on flin Judicmry, 87th Cang. Id Cong,, Id Seas 63, 99-103 (1962) [hereinafter cited ar Heniings on Consfiiutronol Rightal.

83 Heortn~a on H.R. ilM Beiore o S?ibiommittee of the Hovse Committee on...