2021 (October Term)
United States v. Nelson, 82 M.J. 251 (a servicemember’s protection against compulsory self-incrimination is unparalleled in the civilian sector because this fundamental right is protected by both the Fifth Amendment and Article 31, UCMJ).
(the Fifth Amendment guarantees that no person shall be compelled in any criminal case to be a witness against himself; similarly, Article 31(a), UCMJ, prohibits individuals subject to the UCMJ from compelling any person to incriminate himself or to answer any question the answer to which may tend to incriminate him; importantly, Article 31, like the Fifth Amendment, focuses on testimonial compulsion).
(to qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled).
(if what is requested from an accused is not testimonial, then the Fifth Amendment privilege against self-crimination is not implicated; similarly, if what is requested is not incriminating, then the Fifth Amendment also is not implicated).
(the voluntariness of a confession turns on whether an accused’s will has been overborne, and in determining the voluntariness of a confession, an appellate court examines the totality of all the surrounding circumstances by applying a two-part test, looking to both the personal characteristics of the accused as well as the circumstances of the interrogation; regarding personal characteristics, some of the factors taken into account have included the youth of the accused, his lack of education, or his low intelligence; regarding the circumstances of the interrogation, some of the factors taken into account have included the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep; there is no requirement that the prosecution prove as part of its initial burden that the accused knew that he had a right to refuse to answer the questions that were put to him).
2016 (October Term)
United States v. Mitchell, 76 M.J. 413 (the Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself).
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 defendant’s 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 appellant’s
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 accused’s 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).
2004
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).
2003
United
States v. Mapes, 59 MJ 60 (a servicemember’s
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 servicemember’s 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
citizen’s 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).
1999
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 suspect’s 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 representative’s questioning of appellant violated the rule in Edwards v. Arizona, 451 U.S. 477 (1981), where the individual asking the question: (1) was appellant’s 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).
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 appellant’s 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).
United
States v. Sanchez, 51 MJ 165 (conviction for failing to
report
serious offense did not violate appellant’s Fifth Amendment right
against
self-incrimination where appellant could have reported the offense
immediately
without incurring criminal liability).
(appellant’s unconditional guilty plea waived claim that conviction
for
failing to report serious offense violated appellant’s Fifth Amendment
right
against self-incrimination).
United
States v. Gray, 51 MJ 1 (statements made by appellant
pursuant
to a guilty plea in state court were not admitted at court-martial in
violation
of appellant’s Fifth Amendment right against self-incrimination as
appellant
had received rights warnings, invoked right to counsel, consulted with
counsel,
and agreed to provide information to both the police and to state
court, and
did so, in the presence of counsel).