The Sixth Amendment and Military Criminal Law: Constitutional Protections and Beyond

• Author: by Major Norman G. Cooper
• Pages: 02

In all cnminal prosecutions, the accused shall enjoy the nght to a speedy and public tnal, by an tmpartial p f y of the State and district toherein the crime shall have been committed, which district shall have been prenously ascertained by law, and to be znfomed of the nature and cause of the accusation, to be confronted zcith the witnesses agatnst him; to have compulsory process forobtaining icztnesses tn his favor, and to have the assist-ance of counsel for his defense.'

1. INTRODUCTION

   "Yare than any other provision of the Constitution, the sixth amendment epitomizes the adversary system."2 It provides the fundamental protections for a pereon accused of crime in our adiersarg

   *The opinions and e ~ n e l u s i ~ n ~ expremed I" this aniele are those of the author

   and do not necessarily represent the views a! The Judge Advocate Generah school, the Department of the Army. or any other governmental agency** J.4GC. Knifed Stares Army. Initruetor and Senior Instruefar, Criminal LawDivisan, The Judge .Adiocafe Generaps School. Charlotfewille, Virginia. 1976 to present Former military judge. 6th Judicial Cireuit. C S Army Judiciary, Frankfurt, Germany. 1972.1976 B.A.. 1964, The Citadel J.D., 1867, Duke Law.School. M A , 1975, Univerety of Southern Caliiornia Graduate of the 20th Advanced (Graduate) Course, JAG School. 1872. Member of the Bars o! X m h Carahna. the Diitriet of Columbia, the U.S.

   Army Coun af Militer) Rewu, the U.S District Court for the Eastern District of Xorth Carolina, the U.S.Caun af

   Military Appealr, and the U.S Qupreme Coun Author of O'Caiiahan Revisited' Srrering the Smmicr Connectton, 76 Mil L. Rev. 165 (1977); .My La, and Milttary Justrce-To What Effect?. 59 Mil. L Re,. 93 (1873). and book review.% published at 82 MII. L. Rev. 199 (19781. 75 Mil L Rev 183 (1977). and 66 Mil. L. Rei.. 263 (19721>U.S.

   Conat. amend VI.lImwmkelreid, Chambers L. Yzssiss~ppi.

   ,1975) The Constttz-tisnd Righl Lo Piesent Ds.fmse Euidenie, 62 Mil. L Re, 225 (19731

   ~ C S

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   criminal system. The essence of these proteetmns is that an accused person be afforded a fair hear~ng.~

   A fair heanng contemplates a

   speedy and public trial by an appropriate fact-finding body, and notice of the accusations with an opportunity to confront one's ac-cusers and present a defense with the assistance af counsel

   The sixth amendment 1s the primark source of all of these protections, and, of course, is generally arailable to a military accused because "military courts, like the state courts. hare the same re-aponsibilitiea as do the federal courts to protect a pereon from a violation of his constitutional rights."< How nell have military courts met the reapanaiblity of securing a fair trial far military accused by applying the fundamental protections of the 8ixth amendment? This article examines the basic provisions of the sixth amendment as they apply in military criminal law It surveys the several elau8es of the sixth amendment seriatm, and also addreases statutory and other protections available to a military accused as aell as judicial enhancement of sixth amendment provisions

   11. RIGHT TO SPEEDY AND PUBLIC TRIAL A. THE SIXTH AMENDMENT SPEEDY TRIAL REQUIREMENT

   "In all criminal prosecution, the accused shall enjoy the nght to a speedy and public trial . . . . ''> Regarding one's right to a speedy trial, the Supreme Court has held "that the right to a speedy tnal is ae fundamental as any of the rights secured by the Sixth Amend-ment."B

   Article 10 of the Uniform Code of Military Justice' has not only been held to reiterate the basic guarantee of the amth amendment's speedy trial provisions but to "demand more expeditious military trials than does the It has been axiomatic in military

   'Id ac 227-228.'Burns >. Wilaon, 346 U.8 137, 142 11963). me el80 United States Y Jacob,. I1 " . S Canbt amend VI'Klopfsr jl. Xorrh Cnralma. 386 U S 213, 233 (1967)dUnited Stater I Hounihell 7 C M.A. 3 21 C M R 129 119asUmted States ,, Marshall. 22 C M.A. 431, 47 C M R 409 11973).

   c M A 426, ~30.31. 29 C.M R 244. 246-4i (19601

   'in u S.C. d 810 (1876)

   criminal trials that a military accused should have the benefit of more stringent speedy trial requirements in circumstances of arrest or confinement prior to trialLo because a military accused "does not have the same opportunity for bail"" as does his or her civilian counterpart.'Z

   the Constitutional guarantee, it is only triggered by arrest or confinement.13 Indeed, a military accused must be "in arrest or confinement for a period of some significant duration before the Gov-ernment run8 the risk of activating Article Thirteen days of pretrial confinement alone has been held insufficient to constitute a violation of Article In the absence of arrest16 or confinement"

   "Article lo, Uniform Code of Military Justice (hereafter cited ai U.C.M.J ) provides ~n pertinent pa't' "Ukn any perron subject to this chapter 18 placed m ameat or confinement prior ta t i i d immediate steps shall be taken to rnfarm him of the epetifie wrong of which he is seevbed and to try him or dmmm the charges and relea~e him."

   LLUnited States s. Mock. 49 C H.R. 160. 161 (A.C.M.R. 1974). QII alm Hopson, The Law of Speedy Tnol. Cnitsd Stoles L Burlon. el C M A IlP, 44 C M R 166: Lktnztrd Stoles Y. Hzbbard. 81 C '%I A. Is1. 44 C M R 185 110711, 57 Mil. L. Rei. 189 at note 6 (1972).

   "Arficie lo, U C.M J., provides in PBrt thnt"Ia1ny person subject to this chapter tharged with an affenae under thin chapter ahdi be ordered info arreit or con. finemenl as crcvmstances TeOYLle.

   This statutory bnaii far pmtria.1 ieitrainf has been extended by the Court of Military Appeals to require not only P prompr review by B neutial and detached magistrate of pretrial emfinement under strict standards but also adoprion and application to the miiitnry jusrice system of many of the requirements pertaining to ppetrid release found ~n Part V, Ameiiean Bar Aaroeintmn. Standards, Pretrial Release (1968). Set United States \,. Heard, 8 M.J. 14 (C.M.A. 1977), and United States v Malia, 6 M.J. 65 (C.M.A. 1978):

   ~ e e aim Cooper, Hove You Heard? hzew

   Rulesfor P~slnal Conftnemmf, The Army Lawyer, May 1977, at 21. Thus, the absence of bail I" the military justice system hna led to eonddeiable judieinl contrdnt upon pretrial iestraint of B military accused.

   "United States Y. Kelson, 6 M.J. 189 (C.M.A. 1978).

   "Id. at 190.lb1d

   etrsinl of B person by an order, not imposed as B punishment far any offense, directing him to iemjun within certain specified limits "

   "A Q P V ~

   restriction to B unit area with hourly 8ign-m procedures has been heid fmiammnt LO confinement for purposes of article 10, U.C M J. See United States

5. Schilf, 1 M.J. 251 (C.M.A. 1976).

   a military accused can only rely upon the sixth amendment's basic right to a speedy trial to protect apamst unwarranted government delai .I8

   Whether one's right to speedy trial guaranteed by the sixth amendment applies to military criminal trials implicitly in the operation of statutory pr~risions,'~by "military due pr~eess,"~~ or by

   force maleuie.21 it enjoys a special significance because of statutory, executive, judicial and command enhancement. That IS. in addition to the provisions of Article 10, U.C.M.J.,22 Congress haa ea-tablished certain procedural and punitwe articles of speedy trial impart: Article 33, U.C.M.J. provides that when one is pending trial by general court-martial, ordinarily within eight days of arrest or confinement the charges and investigation shali be forwarded to the general court-martial convening authority.23 and Article 98, U.C.M.J., makes it a crime to unnecessarily delay the disposition of a military accused's case.24

   ""it is sppnrent therefore that the draftsmen of the Uniform Code and Congress . . reaffirmed an accused's right to a aped) f n d which he could effectively enforce by a motion for appropriate relief '' United States Y Haunihell. 7 C M I3, 21 C M R 129. 134 119661"Srr Tichenor. The Accwed's Righl to o Speedy Tn-oi fin Yviitory Law. 25 Mil L Rev. 1, 2-8 119711.ll"Iilt IS apparent chat the protections m the Bill af Rights. except those which are erpreraly or by neee~~sryimplication inappiwable. are available to members of our armed farces.'' United States Y Jaeoby. 11 C.M.A. 428, 29 C.M.R. 244, 246-47 (19601. Aira, the "burden of shoulng that military conditions require a different rule than that prevailing I" the eivilian community 18 upon the party argu-ing far P different rule " Courtney I

   Willlama. 1 M J 267. 270 (C M A 19761

   ""Article 10, Uniform Code of Military Just~ce. 10 C.S C I810 (19701. provides the d e statutory banis for the right to a speedy dlspasrfion of enminil charges lodged against an necued person In the military justice system " United States v Nelson. 6 M J 169, 190 (C M.A 19781.

   delay10 C.S C. $ 338 (1976).

   "Any pereon subject to this chapter w h e

   (11 is responsible for mneeesssry delay in the disparition 01 m y ease of P

   person aceused of an offense under thin chapter, 01

   Article 33, U.C.M.J.,Z5 has been held not to embody any substantive rights or protections, but "simply is a procedural mandate, deviation from which must be measured for specific prejudice to the accused (citation omitted)."ae Similarly, while Article 98, U.C.M.J.Z' has been cited with vigorzB in decisions by the Court of Military Appeals, there are no reported cases of successful prasecution under its provisions.

   The President in promulgating the 1969 Manual for Courts-Martialz8 added two net\- paragraphs dealing with speedy trial based upon judicial developments. Paragraph 681 of the Manual states that "[aln accused has the right to a speedy trial, the denial of which may be asserted by a notion to dismiss."30 The Manual further provides substantive rules pertaining to speedy trial in paragraph 215e,31 indicating that a military accused has a right to trial "within a reasonable time after being placed under a reStra.int such 8s restriction,

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   (2) Knowingly and intentionally...