Right to Call Witness

In United States v. Lampani, 14 M.J. 22, 26 (C.M.A. 1982), the COMA provided a non-exclusive list of factors a military judge must consider before denying a member's request for additional evidence.16 In this case, the military judge did not consider these factors (or any other factors) on the record, which was an abuse of discretion (citing United States v. Rios, 64 M.J. 566, 569 (A. Ct. Crim. App. 2007).

To prevail when a military judge erroneously denies a member's right to call a witness, the Government must show that "the error did not have a substantial influence on the findings." (quoting Rios, 64 M.J. at 569). In this case, the defense counsel did not object to the military judge's denial of the request or ask to clarify what witness was requested. Silence did not waive the accused's right to have the military judge correctly instruct the members, thought the court could infer the defense had tactically called the witnesses who "best fit the defense theory of the case."