My alibi is . . .

ACC:  Sir, I was at the gym, so I wasn’t where this happened.

TC:  Objection your honor, we’ve received no notice under Mil. R. Evid. 701.

MJ:  Sustained.

DC:  Judge we are only offering alibi through the accused.

MJ:  The objection is sustained, move on counsel.

An accused has a constitutional right to present a defense, and that includes a defense of alibi, or in drug cases, innocent ingestion.  See generally, Chambers v. Mississippi, 410 U.S. 284 (1972).

R.C.M. 701(b)(2) requires pretrial notice about certain defenses.

But, United States v. Lewis, 51 M.J. 376 (C.A.A.F. 1999), tells you why the military judge may be wrong and the defense counsel may be right.  In reality the trial counsel isn’t wrong for making the objection, but . . .  In Lewis, the CAAF said about R.C.M. 701(b)(2):

We do not read this Manual provision as establishing a requirement for corroborative witnesses or direct evidence as a condition for raising the defense of innocent ingestion. Such requirements would be inconsistent with our case law and other Manual provisions. See Harper, supra at 163 (accused testified on the possibility of accidental ingestion without corroborative eyewitnesses); Ford, supra at 336 (accused suggested possible explanation of wife secretly planting drugs in his food without corroborative eyewitnesses); RCM 918(c) (findings may be based on direct or circumstantial evidence). Instead, we more reasonably construe this rule as requiring notice of witnesses to innocent ingestion, other than an accused, only if an accused intends to call such witnesses to establish this defense at trial. Finally, . . . , other language of this rule expressly states that "this rule shall not limit the right of the accused to testify in the accused’s behalf." RCM 701(g)(3)(D). Therefore, the appellate court below correctly suggested, and the Government on appeal correctly conceded, judicial error.

Lewis, 51 M.J. at 380.

I think part of the underlying rationale in Lewis is that until the accused decides to testify he has the right to silence.  There’s no rule that can require an accused to disclose his testimony in advance of him taking the witness chair.  I’m reminded of this case because something similar is reported by the Professor Colin Miller the great on evidence.  Today he reports a Utah Supreme Court case in which the court “Reverses Conviction Based On Improper Exclusion of Alibi Testimony.”  The point is noteworthy for three reasons:  the decision is in line with Lewis, the Utah rule is in line with R.C.M. 701, and the Utah rule deviates from the RCM because the prosecution is then required to give specific notice and names of witnesses in rebuttal.

How about an amendment to RCM 701(b)(2).  Or would that unduly favor the defense?