United States v. Clay, 1 U.S.C.M.A. 74 (1951), held that service members are specifically excluded from the protections enshrined in the Constitution. Instead, they were solely entitled to the statutory rights granted them by Congress. These rights, referred to as “military due process,” may mirror those found in the Constitution, but they need not be. That all changed with the CAAF’s decision in United States v. Jacoby, 11 U.S.C.M.A. 428 (1960), which makes it a landmark—if not THE landmark—military justice decision.

The CAAF’s military due process doctrine faced an early test shortly after Clay in United States v. Sutton, 3 U.S.C.M.A. 220 (1953), a case involving the use of an interrogatory (i.e. a document containing a set of written questions submitted to a witness and his written answers) at trial as evidence taken without providing the Accused an opportunity to cross-examine the witness during an oral deposition. The CAAF applied Clay and held the use consistent with military due process. But the Chief Judge’s spirited dissent arguably laid the groundwork for the Jacoby decision seven years later.

Basically, Private (PVT) Alton Sutton was convicted of a number of offenses, one of which was malingering for allegedly “shooting himself in the hand to avoid service.” [221] Rather than put a key witness on the stand, the Government decided to instead introduce his deposition at trial. To effectuate this, it provided a copy of its proposed interrogatories to Sutton’s detailed defense counsel and gave him the option to submit cross-interrogatories. Counsel declined. By the time trial occurred, Sutton had a newly detailed defense counsel, who objected to the introduction of the deposition, as Sutton (and his counsel) was not present at the taking of the deposition to cross-examine the witness. Thus, he was denied his right to confrontation.

The Board of Review set aside Sutton’s conviction, concluding he was denied the right to confrontation under Clay’s “military due process” doctrine, which articulated the right as one statutorily bestowed by Congress. The Judge Advocate General of the Navy certified the case to the CAAF and it reversed the lower tribunal’s decision, stating:

We recognize the probability that if the last sentence [(the excerpt from Clay articulating confrontation as a statutory right)] is considered separately and apart from the other reasoning, it would appear to support the holding of the board. However, when interpreted in the light of other statements, it appears to us to bespeak a different principle. In testing the privilege to be confronted by witnesses, the board of review went to the Federal civilian cases for the law and sought to make the military law conform. In some instances this might be an acceptable method of approach but for reasons which will be later amplified, all it would accomplish in this instance is to defeat the clearly expressed intent of Congress. We do not believe that result is required by our holding in United States v. Clay, supra. In that case we specifically stated we were building “military due process” on the laws enacted by Congress and not on the guarantees found in the Constitution. Particularly were we speaking of the Uniform Code of Military Justice as the source and strength of military due process. Therefore, when we enumerated confrontation of witnesses as one of the privileges accorded an accused by Congress, we had to be considering it in the light of any limitations set out in the Code. Surely we are seeking to place military justice on the same plane as civilian justice but we are powerless to do that in those instances where Congress has set out legally, clearly, and specifically a different level.

Sutton, 3 U.S.C.M.A. at 222-23.

It then concluded:

In the instant case the accused was accorded the right of cross-examination as a legally trained lawyer who had been appointed to represent him was served with a copy of the interrogatories and had an opportunity to propose cross-questions. While it may be preferable, we do not find it essential that the same person represent the accused at the taking of the depositions as represents him at the trial. However, it is necessary when the deposition is to be used in a general court-martial that he be represented at the former by legally trained counsel. This accused was accorded that right and the right of cross-examination but he was denied the secondary advantage. This is a penalty which Congress has said he must pay because of the limitations inherent in the military system. The right of an accused in all instances to be confronted by witnesses and the right of the Government to take depositions by written interrogatories are inconsistent. What may be desirable must give way to the absolute necessities of the services. Congress has given both parties the right to obtain evidence by the taking of depositions and has excluded their admission into evidence only in cases involving capital offenses. We can do no less than follow its dictates.

Sutton, 3 U.S.C.M.A. at 226 (emphasis added).

The Chief Judge dissented. “I have absolutely no doubt in my mind that accused persons in the military service of the Nation are entitled to the rights and privileges secured to all under the Constitution of the United States, unless excluded directly or by necessary implication, by the provisions of the Constitution itself . . . On that basis, I cannot agree with the majority opinion which lightly deprives the accused in this case of a basic constitutional privilege.”[1]

Because it bears (at least I argued it does) on the later ruling in Jacoby, it is best to fully include Chief Judge Quinn’s reasoning rather than paraphrase:

The Fifth and Sixth Amendments to the Constitution protect certain fundamental rights and privileges of persons accused of crime. With only a single express exception, there is no withholding of the protection of these rights and privileges from an accused because he is, at the time, serving with the armed forces of his country. Under the express exception, set out in the Fifth Amendment, an accused in the armed forces may be held to answer for a capital, or otherwise infamous crime, without presentment or indictment of a grand jury. Constitution, Fifth Amendment. To this express exception may be added the implied limitation of the right to trial by jury, as protected by the Sixth Amendment, to the extent that a jury trial is required only where presentment or indictment is necessary. Ex parte Richard Quirin, 317 U.S. 1, 87, L. ed 3, 63 S. Ct. 2; Ex parte Milligan, 71 U.S. 2, 18 L. ed. 281. No other recognized exceptions have been cited and I know of none. The opinions of the appellate courts in the Burns case, supra, support the conclusion that there are no other exceptions. Thus, in the majority opinion by Judge Prettyman in the Court of Appeals, it was said (pp 340-341):

“Upon elementary reasoning, upon the language and structure of the Constitution, and upon authority, we think men accused before courts-martial are entitled to due process of law. It is an elementary precept in our concept of law and government that a human being has an inherent right to due process of law. The power of the Congress to make rules for the armed forces is one of a long list (eighteen, to be exact) of powers conferred in Section 8 of Article I upon the Congress. We find no intimation in the Constitution itself that Clause 14 of Section 8 of Article I and proceedings pursuant thereto are exempt from the requirement and prohibitions of the Fifth and Sixth Amendments. We think those Amendment apply to each and all of the powers of the Congress, to the 14th Clause of Section 8 as well as to the other seventeen clauses, and to all acts of executive officials under Article II and to judicial proceedings under the power conferred by Article III, except when an exception is stated in the Constitution itself. . . . It seems to us to be clear upon the face of the test that the specific exception of cases arising in the land or naval forces from the first clause, relating to indictment before prosecution, conclusively shows that the exception does not apply to the other clauses. As we have already pointed out, the Supreme Court has definitely indicated that the double jeopardy clause applies to courts-martial.”

Mr. Chief Justice Vinson, in the Supreme Court’s majority opinion, said:

“The military courts, like the state courts, have the same responsibilities as do the federal courts to protect a person from a violation of his constitutional rights. . . .”

And, in the dissenting opinion of Mr. Justice Douglas, concurred in by Mr. Justice Black, it was said:

“Of course the military tribunals are not governed by the procedure for trials prescribed in the Fifth and Sixth Amendments. That is the meaning of Ex parte Quirin, 317 U.S. 1 [. . . ], holding that indictment by grand jury and trial by jury are not constitutional requirements for trials before military commissions. Nor do the courts sit in review of the weight of the evidence before the military tribunal [. . . ] But never have we held that all the rights covered by the Fifth and the Sixth Amendments were abrogated by Art. I, § 8, cl. 14 of the Constitution, empowering Congress to make rules for the armed forces. I think it plain from the text of the Fifth Amendment that that position is untenable. . . .”

Sutton, 3 U.S.C.M.A. at 228-29.

The same issue arose again in Jacoby. The Air Force court-martialed Airman Third Class (A3C) Loretta Jacoby for uttering worthless checks. Over the Defense’s objection, the prosecution introduced three written interrogatories of bank officials instead of putting them on the witness stand or allowing the Defense to cross-examine the witnesses at an oral deposition. On appeal, Jacoby specifically argued that the CAAF’s prior case law—to include Sutton—violated the Sixth Amendment.

The court—now with Judge Homer Ferguson having taken Judge Paul Brosman’s seat—agreed. “Our reexamination of the question convinces us that the accused’s position is meritorious.”[2]

The CAAF specifically acknowledged that it erred in “giving effect to the doctrine of stare decisis” in Sutton. The majority then concluded:

While the dissenting Judge apparently disagrees, see United States v. Sutton [ . . . ] and United States v. Clay [ . . . ] it is apparent that the protections in the Bill of Rights, except those which are expressly or by necessary implication inapplicable, are available to members of our armed forces. Burns v. Wilson, 346 U.S. 137 [ . . . ] (1953); Shapiro v. United States, 107 Ct. Cl. 650 [ . . . ] (1947); United States v. Hiatt, 141 F.2d 664 (CA 3d Cir) (1944).

The court then focused exclusively on the Sixth Amendment right to confrontation, rather than expound on its declaration or reference (let alone discuss) the dissenting rationale in Sutton, which is where the phrase “expressly or by necessary implication” came from. This failure opened the door to the CAAF’s eventual evolution of this phrase into its current “military necessity” doctrine, which I have discussed elsewhere.

Regardless, Jacoby announced—for the first time—that the Constitution applied to military justice; a truly landmark decision.

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[1] 228.

[2] Jacoby, 11 U.S.C.M.A. at 429.