The Procurement and Presentation of Evidence in Courts-Martial: Compulsory Process and Confrontation

Although pretrial litigation often seems to render trial on the merits something of an anti-climax, adversarial adjudication is of course the focus of the criminal justice system, military or civilian. Once trial on the merits has begun, trial and defense counsel naturally utilize the rules of evidence in the fashion most likely to make the most of the evidence available to them. Yet, as all lawyers are aware, the period since the enactment of the Uniform Code of Military Justice has brought sweeping changes not only in military criminal law, but also in the constitutionalization of the law of evidence. Increasingly, considerations of compulsory process and confrontation play important roles in determining what evidence can be obtained and used at trial. Accordingly, this article undertakes to review the law applicable to the procurement and admission of evidence on the merits in the armed forces in light of the Sixth Amendment rights to compulsory process and confrontation. Such a review necessarily entails a considerations of matters which are generally considered procedural, primarily the law applicable to witness procurement, as well as matters clearly evidentiary in nature