2015 (September Term)
United States v. Evans, 75 M.J. 302 (the protections afforded to servicemembers under Article 31(b), UCMJ, are in many respects broader than the rights afforded to those servicemembers under the Fifth Amendment of the Constitution; accordingly, when an Article 31(b), UCMJ, violation occurs in a particular case, the appropriate test for prejudice depends upon the facts and circumstances presented; if the Article 31(b), UCMJ, violation also implicates the constitutional rights of the accused, then the harmless beyond a reasonable doubt test applies; but if the Article 31(b), UCMJ, violation stands alone as a statutory violation (that is, if the violation does not also present a constitutional violation), then the nonconstitutional test for prejudice spelled out in US v. Kerr, 51 MJ 401, 405 (CAAF 1999) applies).
(Miranda v. Arizona, 384 US 436 (1966) gave rise to a judicially created, prophylactic rule of constitutional law requiring that an accused must be adequately and effectively apprised of his rights; the Fifth Amendment rights captured by Miranda apply to the military, US v. Tempia, 16 CMA 629, 631, 37 CMR 249, 251 (1967), and are distinct from those provided by Article 31(b), UCMJ; notably, Miranda was decided by the Supreme Court in 1966, but the statutory warning requirements for servicemembers first appeared in the aftermath of World War II).
(the mere fact that Article 31(b), UCMJ, rights have a constitutional analog does not change the means by which those rights are ultimately conferred, i.e., by statute, nor does it otherwise convert those statutory rights into constitutional rights; indeed, Article 31(b), UCMJ, derives primarily from statutory enactment, not constitutional adjudication; and Article 31(b), UCMJ, rights are in certain respects more extensive than those provided under the Fifth Amendment; therefore, when it comes to such rights, the Constitution prescribes a floor, not a ceiling; in light of these circumstances, violations of Article 31(b), UCMJ, must be viewed as falling into one of two distinct categories: either (a) purely statutory violations; or (b) statutory violations that also present a constitutional violation; this dichotomy leads to the following determination about the appropriate prejudice test that must be applied in each instance: (a) purely statutory violations must be tested for prejudice under the factors provided in US v. Kerr, 51 MJ 401, 405 (CAAF 1999); and (b) statutory violations that also present a constitutional violation must be tested for prejudice under the harmless beyond a reasonable doubt standard).
(in the past, CAAF has applied the constitutional test (i.e., the “harmless beyond a reasonable doubt” test) to purely statutory violations under Article 31(b), UCMJ; today, any precedent to the contrary, such as US v. Guyton-Bhatt, 56 MJ 484, 487 (CAAF 2002) and US v. Pittman, 36 MJ 404, 408 (CMA 1993, is hereby abrogated).
(in the instant case, the facts reflect a statutory violation of Article 31(b), UCMJ, and not a constitutional violation under the Fifth Amendment; first, appellant was not subjected to a custodial interrogation and therefore suffered no violation of his Fifth Amendment rights under Miranda v. Arizona, 384 US 436 (1966); whether a set of facts gives rise to a “custodial interrogation” under Miranda depends upon whether a suspect reasonably believed that his freedom of action was curtailed to a degree associated with formal arrest; in making this determination, courts consider: (1) whether the person appeared for questioning voluntarily; (2) the location and atmosphere of the place in which questioning occurred; and (3) the length of the questioning; the record here demonstrates that appellant’s participation in the questioning was voluntary, the location and atmosphere was a quiet conference room, and although there is little indication as to how long the exchange took, there is no basis upon which to conclude that appellant reasonably believed that his freedom of action was curtailed to a degree associated with formal arrest; as a result, the Article 31(b), UCMJ, violation did not also implicate appellant’s Fifth Amendment rights under Miranda; second, the failure to provide an Article 31(b), UCMJ, warning under the attendant circumstances was not itself so egregious that it prompted any other violation of the Fifth Amendment; although there inarguably exist subtle pressures in military society that are not present in the civilian world, and these pressures, in concert with other, case-specific circumstances, may cause a servicemember who is not in a custodial setting to nonetheless involuntarily inculpate himself, that is not the case here; the totality of the circumstances do not indicate that a servicemember’s will was overborne or that his inculpatory statements were not a product of self-determination; because there was no constitutional violation under the Fifth Amendment, the CCA correctly applied the nonconstitutional test for prejudice).
2014 (September Term)
United States v. Castillo, 74 M.J. 160 (in pertinent part, the Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself; this protection addresses real and appreciable, and not merely imaginary and unsubstantial, hazards of self-incrimination; to qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled).
2012 (September Term)
United States v. Hutchins, 72 M.J. 294 (a request for consent to search does not infringe upon Article 31 or Fifth Amendment safeguards against self-incrimination because such requests are not interrogations and the consent given is ordinarily not a statement; as such, an NCIS request to a servicemember for his consent to search his personal belongings after the servicemember had invoked his right to an attorney was not an interrogation for Article 31 and Fifth Amendment purposes).
(once a servicemember requests an attorney, under Edwards v. Arizona, 451 US 477 (1981), and Oregon v. Bradshaw, 462 US 1039 (1983), he cannot be further interrogated unless: (1) counsel had been made available, or (2) the servicemember reinitiated further communication, exchanges, or conversations).
(after appellant invoked his right to an attorney, a request by NCIS to appellant for his consent to search his personal belongings reinitiated communication with him in violation of his Fifth Amendment right to have counsel present during a custodial interrogation as interpreted by the Supreme Court in Edwards v. Arizona, 451 US 477 (1981), where this request for consent to search by the NCIS initiated a generalized discussion that related directly to the ongoing investigation as contrasted to a bare inquiry about routine incidents of appellant’s custody).
2010 (September Term)
United States v. Clark, 69 M.J. 438 (servicemembers have a constitutional, statutory, and regulatory right to silence).
(it is settled that the government may not use a defendantís exercise of his Fifth Amendment rights as substantive evidence against him).
(based on the language of MRE 304(h)(3) and the weight of authority in the federal circuits, it is constitutional error to introduce evidence of appellantís post-apprehension silence as substantive evidence of guilt, and to then comment on that evidence in closing argument).
(the Fifth Amendment cannot with one hand protect an accused from being compelled to testify and yet with the other hand permit trial counsel to argue that an accusedís silent demeanor in response to an accusation of wrongdoing is tantamount to a confession of guilt).
(the government is permitted to make a fair response to claims made by the defense, even when a Fifth Amendment right is at stake).
United States v. Paige, 67 M.J. 442 (members of the armed forces, like their civilian counterparts, may not be compelled to incriminate themselves in a criminal case).
(a military accused has the right not to testify, and trial counsel may not comment directly, indirectly, or by innuendo, on the fact that an accused did not testify in his defense).
(the privilege against self-incrimination provides an accused servicemember with the right not to testify at his court-martial and precludes comment by trial counsel on his silence).
(a constitutional violation occurs only if either the defendant alone has the information to contradict the government evidence referred to or the members naturally and necessarily would interpret the summation as comment on the failure of the accused to testify).
United States v. Chatfield, 67 M.J. 432 (the Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself).
(while Miranda warnings provide procedural safeguards to secure the right against self-incrimination during custodial interrogations, the Due Process Clauses of the Fifth and Fourteenth Amendments protect an accused generally against the admission of any involuntary statements, whether made in or out of custody).
United States v. Bresnahan, 62 M.J. 137 (the Fifth Amendment to the Constitution prohibits any person from being compelled in any criminal case to be a witness against himself).
United States v. Allen, 59 MJ 478 (the Government may not compel a person to make an incriminating statement).
(through a grant of immunity coextensive with the privilege against self-incrimination, the Government may require a person to make a statement that would otherwise be incriminating).
United States v. Seay, 60 MJ 73 (the Fifth Amendment in pertinent part guarantees that no suspect shall be compelled in any criminal case to be a witness against himself; the Supreme Court has interpreted the Fifth Amendment privilege against self-incrimination to encompass two distinct rights: the right to silence and the right to counsel specifically during pretrial questioning; the privilege against self-incrimination is further protected by Articles 27 and 31 and MRE 305(e) and 305(f)).
(given the inherently compelling pressures of custodial police interrogation, the Supreme Court enunciated the requirement, in pertinent part, that if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent, and has the right to consult with a lawyer and to have the lawyer with him during interrogation; even after Miranda warnings are given and waived, a suspect may change his mind during questioning and assert these rights; the Supreme Court in Miranda twice emphasized that if the suspect invokes the right to remain silent or the right to speak to a lawyer, the police may not question him; the military has explicitly adopted the Miranda warning requirements).
(the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his right to cut off questioning was scrupulously honored).
(the Supreme Court has recognized that a subsequent administration of rights warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement; in such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights; we have also held that subsequent rights warnings may effect a purging of the taint from prior unwarned statements).
United States v. Mapes, 59 MJ 60 (a servicememberís protection against compulsory self-incrimination is unparalleled in the civilian sector; this fundamental right is protected by both the Fifth Amendment and Article 31, UCMJ, which provides additional protection).
(a servicememberís right against self-incrimination, however, is neither absolute nor inviolate; the power of government to compel persons to testify in court or before grand juries and other governmental agencies is firmly established in Anglo-American jurisprudence).
(the tension between the governmental power to compel testimony and a citizenís right to protection against self-incrimination is reconciled in immunity statutes; immunity statutes are also part of our constitutional fabric; an immunity statute permits the Government to compel a citizen to provide information but prevents governmental use of the information to prosecute the citizen).
United States v. Scott, 51 MJ 326 (the Fifth Amendment right against self-incrimination applies during sentencing in a criminal case).
United States v. Mitchell, 51 MJ 234 (in deciding whether questioning by command authorities constitutes interrogation, care must be exercised to ensure that a suspectís sense of loyalty, trust, and confidence in leaders does not obscure his/her legal rights under the Constitution and the UCMJ).
(totality of the circumstances will be considered to determine whether questioning by a representative of command is an interrogation).
(a command representativeís questioning of appellant violated the rule in Edwards v. Arizona, 451 U.S. 477 (1981), where the individual asking the question: (1) was appellantís work supervisor and military superior who was part of an official command visitation team; (2) was present when appellant exercised his right to counsel as part of his pretrial confinement rights; (3) knew of the offenses and that appellant had previously exercised his right to counsel; (4) was not a friend of appellant, but was part of a command visitation where military formality was maintained; and (5) had command disciplinary authority over both appellant and his victim).
United States v. Griffin, 50 MJ 278 (in the face of an appropriate motion or objection, the prosecution bears the burden of establishing the admissibility of a confession, and the military judge must find by a preponderance of the evidence that the statement was voluntarily made, considering the totality of the circumstances, including both the characteristics of the accused and the details of the interrogation).
United States v. Ford, 51 MJ 445 (the prosecution has the burden of establishing the admissibility of a confession, establishing by a preponderance of the evidence that the confession was voluntary).
(in spite of unwarned earlier questioning, a confession given later was voluntary where: (1) statements made during initial unwarned interview were not the product of actual coercion; (2) proper warnings preceded second interview; (3) other then the inherent coercive atmosphere of a station house, appellant was not deprived of personal comforts during second interrogation; (4) although no cleansing warning was given, appellant appeared to understand his rights; and, (5) there was no reference to earlier unwarned statements).
(a confession challenged as derivative evidence may be admitted if the military judge finds by a preponderance of the evidence that the derivative confession was voluntary, that it was not obtained by the use of the inadmissible evidence, or that the confession would have been obtained even if the inadmissible statement had not been made).
(where a confession is obtained by actual coercion, a subsequently obtained confession is presumptively tainted, quoting United States v. Phillips, 32 MJ 76, 79 (1991)).
(where a confession is involuntary only because the suspect has not been warned of his panoply of rights to silence and counsel, the voluntariness of a second confession is determined by the totality of the circumstances to determine whether the confession is the product of an essentially free and unconstrained choice, including consideration of the following: (1) the earlier unwarned statement is a factor in the totality of the circumstances, but it does not presumptively taint the subsequent confession; (2) the characteristics of the accused and the details of the interrogation; (3) subsequent administration of warnings should suffice to remove conditions that precluded admission of the earlier statement; and, (4) the presence or absence of a cleansing warning).
(interrogation must cease if the suspect requests counsel, but an ambiguous request for counsel does not require that interrogation cease; a request is ambiguous if it is not sufficiently clear so that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney).(appellantís invocation of the right to counsel was ambiguous and conditional where appellant told the investigator that appellant would not talk if the investigator persisted in calling appellant a liar, but that he would talk if the investigator would acknowledge that it was the investigator who was mistaken and stop calling appellant a liar).
United States v. Henderson, 52 MJ 14 (where appellant couched his admissions in an exculpatory story of self-defense to military authorities in hopes of avoiding problems with the German government, there was no indication that appellantís will was overborne and his inculpatory admissions were involuntary).
(where appellant simply indicated that he was tired of talking and wanted to continue the next day, there was no unequivocal assertion of the right to counsel or silence, which is required to invoke the bright-line rule against further police interrogation or its functional equivalent).(appellantís statements that he wanted both to talk to police and to see a lawyer in the morning was not an unequivocal exercise of the right to counsel so as to invoke the bright-line rule against further police interrogation or its functional equivalent).
United States v. Sanchez, 51 MJ 165 (conviction for failing to report serious offense did not violate appellantís Fifth Amendment right against self-incrimination where appellant could have reported the offense immediately without incurring criminal liability).
(appellantís unconditional guilty plea waived claim that conviction for failing to report serious offense violated appellantís Fifth Amendment right against self-incrimination).
States v. Gray, 51 MJ 1 (statements made by appellant
to a guilty plea in state court were not admitted at court-martial in
of appellantís Fifth Amendment right against self-incrimination as
had received rights warnings, invoked right to counsel, consulted with
and agreed to provide information to both the police and to state
did so, in the presence of counsel).