U.S. v. McDonald, 55 M.J. 173

First Principles: Constitutional Matters: Due Process

1. a fundamental requirement of due process is that individuals subjected to proceedings by the Government are entitled to the safeguards established in the governing statutes and regulations, and that the Government must follow the prescribed procedures, regardless whether they are constitutionally required
2. the Constitution requires that evidence admitted during sentencing must comport with the utilitarian purpose of the Due Process Clause, i.e. reliability, and procedural-due-process requirements
3. the Due Process Clause requires that the evidence introduced in sentencing meet minimum standards of reliability

Core Criminal Law Subjects: Witnesses: Confrontation

1. the Sixth Amendment right of confrontation does not apply to the sentencing portion of a non-capital court-martial

Trial Stages: Sentence and Punishment: Evidence

1. the Constitution requires that evidence admitted during sentencing must comport with the utilitarian purpose of the Due Process Clause, i.e. reliability, and procedural-due-process requirements
2. the President has provided rules to ensure “relevant and reliable” evidence on sentencing
3. the Due Process Clause requires that the evidence introduced in sentencing meet minimum standards of reliability
4. with respect to the prosecution’s evidence in aggravation, the Rules of Evidence may be relaxed only to the extent that the testimony is offered in “forms of evidence such as” an oral or written deposition; this rule does not prohibit taking testimony by telephone
5. the Sixth Amendment right of confrontation does not apply to the sentencing portion of a non-capital court-martial
6. permitting sentencing evidence from prosecution aggravation witness by telephone did not violate minimum standards of due process where: (1) there was no evidence to suggest that the witness’s testimony was unreliable or that his identity was in question; (2) there was notice to the defense; (3) there was right to counsel; (4) there was right of cross-examination; (5) the evidence was presented to a military judge as sentencing authority; and (6) the record established that the practical difficulties of producing the witness, including the cost and timing, were such that the judge did not abuse his discretion in allowing the testimony to be taken by phone
7. although telephonic testimony during sentencing is not prohibited, it may not be appropriate in all cases, and the Manual’s guidance to the military judge during sentencing is sufficient to ensure the proper balance between obtaining needed testimony and safeguarding the rights of the accused