This question contains a useful tension. The Sixth Amendment right to confront witnesses is generally something the government must overcome before it places a witness outside the courtroom, yet here the accused is the party asking for closed circuit testimony. The short answer is yes. An accused can waive or relinquish the confrontation right, and when the defense itself requests remote testimony, the resulting arrangement is the product of the accused’s own choice rather than a government intrusion on confrontation. Understanding why requires separating two ideas that often get blurred: the constitutional protection itself, and the specific procedural rule that normally authorizes one way live testimony.
The confrontation right belongs to the accused
The Confrontation Clause guarantees that in a criminal prosecution the accused has the right to be confronted with the witnesses against him. In the military system this protection applies at courts-martial. The core of the right is face to face confrontation and the opportunity for cross-examination. Because the right exists for the benefit of the accused, it is a personal right that the accused may give up. Courts have long recognized that constitutional trial rights, including the right to confront and cross-examine, can be waived.
A familiar example in military practice is the stipulation of expected testimony entered as part of a pretrial agreement. When an accused agrees that a witness’s testimony may be presented in stipulated form rather than through live appearance, the accused has relinquished the right to insist that the witness appear and be cross-examined in person. That is a deliberate, counseled choice, and it ordinarily forecloses a later complaint that the witness did not testify live.
How closed circuit testimony normally works against a defense objection
The reason remote testimony draws constitutional scrutiny is that the standard scenario involves the government seeking to present a witness, often a child, by one way closed circuit television over a defense objection. The governing framework comes from the Supreme Court’s decision in Maryland v. Craig, which held that the Confrontation Clause does not categorically bar one way closed circuit testimony by a child witness when the procedure is necessary to protect that particular child and the reliability of the testimony is otherwise assured.
The military implements that principle through the Military Rules of Evidence and the Rules for Courts-Martial. Before a child may testify from outside the courtroom over objection, the military judge must make individualized findings that the procedure is necessary to protect the welfare of the particular child witness, that the child would be traumatized by the presence of the accused rather than by the courtroom generally, and that the emotional distress is more than minimal. Only after those findings are made does the rule permitting testimony outside the accused’s presence apply. This is the contested route, where the accused’s confrontation right is being limited despite an objection.
When the accused is the one requesting it
The question posed flips that picture. If the defense affirmatively requests that a witness testify by closed circuit means, the accused is not objecting to a limitation on confrontation. The accused is electing it. In that posture there is nothing for the government to justify under Craig, because the necessity findings exist to overcome a defense objection that is not present. The accused has chosen a procedure that trades full face to face confrontation for some perceived advantage, such as reducing the emotional impact of an in person encounter, accommodating a witness the defense wants to present, or managing logistics.
This is best understood as a waiver or relinquishment of the in person component of confrontation. The accused still typically retains the ability to see and hear the witness and to cross-examine in real time through the remote link, so the request is not a total abandonment of confrontation rights so much as a knowing acceptance of a remote format. Where the defense both proposes and consents to the arrangement, an accused cannot ordinarily turn around on appeal and claim that the absence of live, in courtroom testimony violated the very right the defense asked the court to set aside. This reflects a general principle in military appellate practice that a party who induces or invites a particular procedure cannot later assign it as error.
Limits and cautions on any waiver
A waiver of confrontation should be knowing and voluntary, and it should be made with the advice of counsel. Because the right is significant, military judges commonly confirm on the record that the accused understands what is being given up. A few cautions follow from that.
First, the waiver reaches only what the accused actually relinquished. Requesting remote testimony for one witness does not surrender confrontation as to other witnesses, and accepting a remote format does not waive the right to meaningful cross-examination of that witness.
Second, the scope of any pretrial agreement language matters. A broad provision waiving all waivable motions does not give the government unlimited latitude to introduce evidence that violates the rules; it operates only on rights that are properly subject to waiver and within the terms the parties agreed to.
Third, an accused cannot use a waiver to manufacture error. If the defense requested the procedure, the defense generally bears the consequences of that tactical decision.
Practical takeaways
An accused may waive the right to confrontation, and that includes choosing closed circuit testimony rather than insisting on live, in person appearance. When the defense requests the remote format, the elaborate necessity findings designed to overcome a defense objection are not the obstacle, because there is no objection to overcome. The accused should make any such decision deliberately, on the advice of counsel, with a clear understanding that real time cross-examination remains essential and that the waiver extends only as far as its terms. A service member weighing this choice should discuss with defense counsel exactly what is gained, what is surrendered, and how the record will reflect a knowing and voluntary election.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
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