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Blogs from August, 2023

  • Criminal defendants in the United States are presumed to be innocent under the law. While an accused is never required to prove his or her innocence, the Constitution does guarantee them the right to present a defense if they so choose. This includes the right to have notice of the charges and evidence against them, call witnesses favorable to their defense, confront witnesses through cross-examination, and testify on their own behalf.

    MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the Uniform Code of Military Justice (UCMJ). If you are facing court-martial, you need an experienced law firm that will fight for you. Contact one of our military defense lawyers today for a free consultation.

    Right to Notice

    The most basic requirement to presenting a defense is the right to be placed on notice of the charges you. In order to adequately prepare a defense, an accused must first know what they have been charged with and what the government is required to prove for a finding of guilt. In the military, an accused is notified of the charges against them after being served with a preferred or referred charge sheet.   

    Sometimes, however, a charge sheet is not enough.

    When greater specificity is required to defend against a charge, a service member can file a bill of particulars under Rule for Courts-Martial (RCM) 906(b)(6). The purpose of a bill of particulars is “to inform the accused of the nature of the charge with sufficient precision to enable the accused to prepare for trial, to avoid or minimize the danger of surprise at the time of trial, and to enable the accused to plead the acquittal or conviction in bar of another prosecution for the same offense when the specification itself is too vague and indefinite for such purposes.” Id.

    A bill of particulars can be used to determine what the government believes happened, which the defense can then use to prepare for trial or file a motion to dismiss any charge that is multiplicious with another.

    Right to Equal Access to Evidence and Witnesses

    After being informed of the charges, an accused next has the right to review the evidence against him. Article 46, UCMJ, provides the trial counsel, defense counsel, and the court-martial with the “equal opportunity to obtain witnesses and other evidence in accordance with” in accordance with the Rules for Court-Martial.

    R.C.M. 701 guarantees each party the “equal opportunity to interview witnesses and inspect evidence.” The rule further provides that the defense may inspect “[a]ny books, papers, documents, photographs, tangible objects, . . . or copies of portions thereof, which are within the possession, custody, or control of military authorities, and which are material to the preparation of the defense.” R.C.M. 701(a)(2)(A). 

    The purpose of these rules is “aid the preparation of the defense and enhance the orderly administration of military justice.” Military courts have held that pretrial discovery and disclosures issues should be evaluated in light of the rule’s “liberal mandate.”

    Right to Confrontation

    The Confrontation Clause of the Sixth Amendment requires that in all criminal prosecutions, the accused shall enjoy the right to be confronted by the witnesses against him. The right to confrontation generally has three components: (1) that the accused have an opportunity to cross-examine the witness; (2) that the witness’s testimony be under oath; and (3) that the jury be able to observe the witness’s demeanor.

    At the heart of the right to confrontation is the requirement that any testimony presented to a jury be subject to cross-examination. The ultimate goal of cross-examination is to test the reliability of testimonial evidence, which is notoriously unreliable. A witnesses’ testimony may be impacted by a personal bias, limitations on memory, physical or environmental factors, or improper suggestion.

    In the 1992 hit movie “My Cousin Vinny”, Joe Pesci—and lawyer from New York with no trial experience—finds himself defending a murder case in rural Alabama. After finally getting comfortable in the courtroom, Vinny conducts three masterful cross examinations of eyewitnesses who testified they had seen Vinny’s clients flee the scene of the crime.

    During his cross, Vinny gets Mrs. Riley (an elderly lady) to state that she couldn’t see well with out-of-date prescription glasses, has Ernie Crane (a neighbor) concede that he could not see the defendants clearly through dirty window screens and trees, and has Sam Tipton admit that he was mistaken on how long the defendants were in the store while cooking his non-magical grits.

    While the right to cross-examination generally requires that the witness appear in person before the jury, child witnesses may be exempted from face-to-face interaction with the accused in certain circumstances and where other accommodations have been made for the jury to remotely observe their testimony.

    Right to Testify

    In addition to the rights listed above, an accused service member always has the right to testify in their own defense. While the decision of whether or not to testify is ultimately up to the accused, a defendant should only testify after extensive consultation with their attorney. Choosing to testify can result in the government presenting additional evidence or the accused being impeached (and made to look like a liar) if they made prior statements to the contrary.  

    Contact MJA Today

    If you are under investigation or facing court-martial, it is of the utmost importance that you are represented by an experienced military attorney.

    MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ and stands ready to fight for you. Call us today at (843) 773-5501 for a free consultation.

    The post Fundamental: The Right to Present a Defense appeared first on Military Justice Attorneys.

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