CORE CRIMINAL LAW SUBJECTS: Evidence:Confessions andAdmissions
Generally:
2018 (October Term)
United States v. Lewis, 78 M.J. 447 (a cleansing statement advises a suspect that the contents of previous unwarned statements may not be used against him).
United States v. Kohlbek, 78 M.J. 326 (the prohibition in MRE 707 on any reference tothe taking of a polygraph examination does not encompass evidence regarding the facts and circ*mstances of a polygraph examination procedure offered to explain the reason or motivation for a confession).
2014 (September Term)
United States v. Piren, 74 M.J. 24 (MRE 304(b)(1) [now MRE 304(e)(1)] specifically provides for the use of unwarned statements for purposes of impeachment by contradiction).
2013 (September Term)
United States v. Jones, 73 M.J. 357 (because of the effect of superior rank or official position upon one subject to military law, the mere asking of a question under certain circ*mstances is the equivalent of a command).
2012 (September Term)
United States v. Hutchins, 72 M.J. 294 (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).
2008 (Septermber Term)
UnitedStates v. Chatfield, 67 M.J. 432 (theprosecution may not use statements, whether exculpatory or inculpatory,stemming from custodial interrogation of the accused unless itdemonstrates theuse of procedural safeguards effective to secure the privilege againstself-incrimination; the safeguards must take the form of specificwarnings – priorto any questioning, the person must be warned that he has a right toremainsilent, that any statement he does make may be used as evidence againsthim,and that he has a right to the presence of an attorney, either retainedorappointed).
(while Mirandawarningsprovide procedural safeguards to secure the right againstself-incriminationduring custodial interrogations, the Due Process Clauses of the FifthandFourteenth Amendments protect an accused generally against theadmission of anyinvoluntary statements, whether made in or out of custody).
(where the events leading uptoand taking place during the civilian police interview of appellantcreatedneither a custodial situation in which Miranda warnings wererequirednor a coercive setting in which appellant’s will was overborne,appellant’sstatements to the officer were given voluntarily, and, as such, themilitaryjudge did not abuse his discretion by admitting them).
2005
UnitedStates v. Bresnahan, 62 M.J. 137 (Article 31(d), UCMJ, prohibitstheadmission of statements obtained from an accused through the use ofcoercion,unlawful influence, or unlawful inducement).
UnitedStates v. Clark, 62 M.J. 195 (generally, in the absence of aprivilege, anyrelevant statement by an accused could be admitted into evidence by thegovernment as a statement of a party opponent).
2001
UnitedStates v. Whitney, 55 MJ 413 (polygrapher’s testimony thatappellantdid not respond to a post-polygraph challenge to his truthfulness wasadmittedin violation of Mil.R.Evid. 301(f)(3) and was error of constitutionalproportion).
(impropercomment about appellant’spost-polygraph silence in the face of a challenge to his truthfulnesswasharmless beyond a reasonable doubt because, inter alia:(1)the military judge admonished the members to disregard this testimony;(2) the president of the court acknowledged that he understoodinstructionto disregard testimony about appellant’s silence; (3) in the absence ofevidence to the contrary, court members are presumed to understand andfollow the military judge’s instructions; and (4) the victim providedcredible,persuasive testimony).
2000
UnitedStates v. Cobia, 53 MJ 305 (the transcript ofappellant’sguilty plea to the same acts as charged at court-marital was admissibleas anadmission under MRE 801(d)(2)).
UnitedStates v. Ruiz, 54 MJ 138 (statement by AAFES securitypersonnel, “[t]here seems to be some AAFES merchandise that hasn’t beenpaidfor”, was not an interrogation requiring Article 31(b) warnings becausethestatement was no more than advising the appellant why he was stoppedand whysecurity personnel asked appellant to accompany them back to theoffice; thesewere words normally attendant to the detention process and not aninterrogation).
(interrogation does not include words or actions normally attendanttoarrest and custody; merely informing a person of what he was suspectedwouldnot mandate an Article 31 rights’ advisem*nt).
1999
UnitedStates v. Scott, 51 MJ 326(the Fifth Amendment rightagainstself-incrimination applies during sentencing in a criminal case).
(theFifth Amendment right againstself-incrimination and Article 31, UCMJ, apply during pretrial andtrialstages, including sentencing, in a criminal case).
UnitedStates v. Griffin, 50 MJ 278 (in the face of an appropriatemotion or objection, the prosecution bears the burden of establishingtheadmissibility of a confession, and the military judge must find by apreponderanceof the evidence that the statement was voluntarily made, consideringthetotality of the circ*mstances, including both the characteristics oftheaccused and the details of the interrogation).
UnitedStates v. Ford, 51 MJ 445 (the prosecution has the burdenof establishing the admissibility of a confession, establishing by apreponderanceof the evidence that the confession was voluntary)2016 (October Term)
United States v. Ahern, 76 M.J. 194 (MRE 304(a)(2) provides that failure to deny an accusation of wrongdoing is not an admission of the truth of the accusation if at the time of the alleged failure the person was under investigation or was in confinement, arrest, or custody for the alleged wrongdoing).
(MRE 304(f)(1) plainly states that claims arising under MRE 304(a)(2) are waived absent an objection; this is not a case where the rule uses the word “waiver” but actually means “forfeiture;” MRE 304(f)(1) does not mention plain error review, and instead unambiguously provides that any claim arising under MRE 304 is waived absent an objection).
2010 (September Term)
UnitedStates v. Clark, 69 M.J. 438 (servicemembershave a constitutional,statutory, and regulatory right to silence).
(it is settled that thegovernment may not usea defendant’s exercise of his Fifth Amendment rights as substantiveevidenceagainst him).
(MRE 304(h)(3) safeguards anaccused’s rightto remain silent, providing that a person’s failure to deny anaccusation ofwrongdoing concerning an offense for which at the time of the allegedfailurethe person was under official investigation or was in confinement,arrest, orcustody does not support an inference of an admission of the truth oftheaccusation; based on the language ofMRE 304(h)(3)and the weight of authority in the federal circuits, it isconstitutional errorto introduce evidence of appellant’s post-apprehension silence assubstantiveevidence of guilt, and to then comment on that evidence in closingargument; alack of response or reaction to an accusation is not demeanor evidence,but afailure to speak).
(testimonial demeanor, likeother testimonialevidence in response to police questioning, implicates an accused’sright tosilence and against self-incrimination, thus triggering the applicationof theFifth Amendment and its statutory and regulatory safeguards; even wheredemeanor is nontestimonial, improper commentary on the accused’ssilence inresponse to police questioning when presenting evidence of an accused’sdemeanor may nevertheless implicate the same rights and protections astestimonial evidence; thus, where the evidence concerns testimonialdemeanor orincludes improper commentary on the accused’s silence, that demeanorevidenceis generally inadmissible under the Fifth Amendment and its statutoryandregulatory safeguards, unless the accused waives those rights orotherwise invitesthe evidence).
(when assessing theadmissibility of theevidence of an accused’s demeanor, a military judge must identify thedemeanorat issue and ask whether the demeanor is itself testimonial or nottestimonialin nature, or whether evidence of the demeanor at issue includesimpropercommentary on the accused’s silence; if evidence of an accused’sdemeanor istestimonial or includes an improper comment on silence, the judgeanalyzes theevidence under the Fifth Amendment or applicable statutory andregulatorysafeguards; where the evidence is neither testimonial nor an impropercommenton silence, the judge then considers whether the accused’s demeanor isrelevantunder MRE 404(b) or other evidentiary rules relating to relevance).
(trial counsel’s comments inhis openingstatement, direct examination of the investigating agent, and closingargumentconstituted plain error because they clearly commented on appellant’ssilencein response to appellant’s post-apprehension, pre-advisem*nt accusationofcriminal conduct, in violation of MRE 304(h)(3) and the Fifth Amendmentrightto silence; first, trial counsel’s opening statement reference toappellant’sreaction - “shoulders slumped and his head dropped; chin to chest” - ashisresponse to being confronted with being suspected of communicatingsexuallanguage with a minor conveyed that appellant failed to deny theaccusation,rather than merely describe appellant’s body movements as one of aseries ofevents to describe what was happening; second, during the directexamination ofthe investigating agent, trial counsel not only elicited explicitcomments onappellant’s response of silence but explicitly commented on appellant’ssilencehimself in the examination questions; finally, trial counsel relied onthesecomments in his closing argument to explicitly argue that appellant’ssilenceevidenced his guilt).
(the Fifth Amendment cannotwith one handprotect an accused from being compelled to testify and yet with theother handpermit trial counsel to argue that an accused’s silent demeanor inresponse toan accusation of wrongdoing is tantamount to a confession of guilt).
(trial counsel may use thefact of post-arrestsilence to contradict an accused who testifies to an exculpatoryversion ofevents and claims to have told the police the same version upon arrest,thusacting not as substantive evidence of guilt but rather as a challengeto theaccused’s testimony as to his behavior following arrest; however, trialcounselis prohibited from treating the accused’s silence as substantiveevidence ofguilt).
(trial counsel’s comments onrebuttal closingargument that the first thing that appellant said when he wasconfronted by lawenforcement officers was said through his defeated body language andsilencewere comments that were not invited as a fair response to appellatedefensecounsel’s general closing argument that “right from the start,”appellant hadstated that he thought he was communicating over the internet with acop andnot a 13-year-old girl; appellant did not testify to making anexculpatorystatement to the police after his arrest, and his defense counsel didnot arguethat the “first” thing appellant said was, “I thought it was a cop”;taken incontext, trial counsel’s comments went beyond what was permissible asfairresponse and used appellant’s demeanor and silence as evidence ofguilt; assuch, this was constitutional error).
UnitedStates v. Pope, 69 M.J. 328 (it isconstitutional error to admit evidenceof - or comment on in argument - an accused’s post-apprehension silenceasevidence of guilt).
(although testimonial commentsat trialindicated that when appellant was informed of her positive drug test,she waslackadaisical, acted like she did not care, and did not appearsurprised, thesecomments could be viewed as either nontestimonial demeanor evidence orasimplicating appellant’s right to remain silent; it is a closer questionwhetherthe comments violated MRE 304(h)(3)(stating that a person’s failure todeny anaccusation of wrongdoing concerning an offense for which at the time ofthe allegedfailure the person was under official investigation or was inconfinement,arrest, or custody does not support an inference of an admission of thetruthof the accusation).
2008 (September Term)UnitedStates v. Paige,67 M.J. 442 (a military accused has the right not totestify, and trial counsel may not comment directly, indirectly, or byinnuendo, on the fact that an accused did not testify in his defense).
(the privilege againstself-incriminationprovides an accused servicemember with the right not to testify at hiscourt-martial and precludes comment by trial counsel on his silence).
(a constitutional violationoccurs only ifeither the defendant alone has the information to contradict thegovernmentevidence referred to or the members naturally and necessarily wouldinterpretthe summation as comment on the failure of the accused to testify).
(thediscussion to RCM 919 suggests that trial counsel may notargue that the prosecution’s evidence is unrebutted if the onlyrebuttal couldcome from the accused).
2002
UnitedStates v. Alameda, 57 MJ 190 (
(Appellant’s failure to deny an allegation of domestic assault didnotsupport an inference of guilt and was irrelevant where: (1)appellant wastold that he was being apprehended for an alleged assault; (2)appellant had ahistory of domestic violence; (3) appellant had been accused ofassaulting hiswife less that two weeks earlier; (4) appellant had been ordered tostay awayfrom her because of the incident; and (5) even if appellant’s silenceconstituted an admission, it would admit only an “alleged assault,” notattempted premeditated murder).
(military judge committed constitutional error by permitting theprosecutionto introduce evidence of appellant’s post-apprehension silence assubstantiveevidence of guilt, and to then comment on that evidence in closingargument).
(instructions that did not address the question whether any adverseinference could be drawn from appellant’s silence at the time of hisapprehension did not cure the error in trial counsel’s argument and mayhaveexacerbated it by leading the members to conclude that they werepermitted todraw an adverse inference from appellant’s silence at the time of hisapprehension).
2000
UnitedStates v. Ruiz, 54 MJ 138 (a person’s failure todeny anaccusation of wrongdoing concerning an offense for which at the time ofthealleged failure the person was under official investigation does notsupport aninference of an admission of the truth of the accusation).
(cross-examination by trial counsel focused on attacking theaccused’sversion of the events in an AAFES security office, in which the accusedportrayed himself as an innocent man wrongly accused by the lying AAFESsecurity personnel; questioning on cross-examination about whether theaccusedhad protested his innocence and why the accused did not proclaim hisinnocenceto a law enforcement officer who arrived later were propercross-examinationand not improper comment on the accused’s silence ).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).
(the general rule is that if Miranda/Article 31 warnings are given properly the first time and there is a continuance of the interrogation, separate warnings are not needed; this principle holds true even if the interrogation is continued one day later).
2020 (October Term)
United States v. Harpole, 81 M.J. 8 (Article 31(b) provides, in relevant part, that no person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first giving the suspected person the proper warnings).
(in this case, a victim advocate was not required to advise appellant of his Article 31(b) rights before talking with him after appellant sought her out in her role as a victim advocate to report that he had been sexually assaulted by another member of the ship’s crew, the same member who filed the sexual assault complaint for which appellant was later convicted; the victim advocate did not do anything that suggested that she was acting for law enforcement or disciplinary purposes: she did not take notes, order appellant to answer questions or write statements, or reach out to the criminal investigative service with a report; in fact, she was so removed from that kind of role that she had no familiarity with Article 31(b) warnings at all; instead, she acted as a supportive victim advocate: she simply listened to appellant’s allegation of sexual assault and then briefed the chain of command about the report, in accordance with her victim advocate training; the few questions that she asked and to which appellant responded were not made in an interrogating manner and did not elicit incriminating statements from appellant).
2017 (October Term)
United States v. Harpole, 77 M.J. 231 (Article 31(b), UCMJ, warnings are required when: (1)a person subject to the UCMJ, (2)interrogates or requests any statement, (3)from an accused or person suspected of an offense, and (4)the statements regard the offense of which the person questioned is accused or suspected).
2016 (October Term)
United States v. Ramos, 76 M.J. 372 (Article 31(b), UCMJ, warning rights are required when (1) a person subject to the UCMJ, (2) interrogates or requests any statement, (3) from an accused or person suspected of an offense, and (4) the statements regard the offense of which the person questioned is accused or suspected; and Article 31(d) states that no statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial).
(generally, an accused must be informed of his Miranda (384 US 436 (1966)) rights prior to custodial interrogation; in military jurisprudence, Congress has provided military members, under Article 31(b), with a rights’ warning requirement that is broader than those required by Miranda; Article 31(b), UCMJ, states that an accused may not be interrogated or requested to make a statement if that person is suspected of committing an offense without first informing the accused of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial).
(under Article 31(b)’s second requirement, rights warnings are required if the person conducting the questioning is participating in an official law enforcement or disciplinary investigation or inquiry, which is determined by assessing all the facts and circ*mstances at the time of the interview to determine whether the military questioner was acting or could reasonably be considered to be acting in an official law-enforcement or disciplinary capacity; in interpreting Article 31(b), this court has recognized the difference between questioning focused solely on the accomplishment of an operational mission and questioning to elicit information for use in disciplinary proceedings; however, where there is a mixed purpose behind the questioning, the matter must be resolved on a case-by-case basis, looking at the totality of the circ*mstances, including whether the questioning was designed to evade the accused’s constitutional or codal rights).
(in this case, the military judge abused his discretion in concluding that law enforcement agents, who interviewed appellant about threats that he and his wife had allegedly received from his wife’s partner in a state-authorized marijuana growing business, were not conducting a law enforcement investigation, but were instead focused on force protection, where under a totality of the circ*mstances, the agents suspected appellant of a UCMJ violation for his involvement with marijuana, but intentionally declined to advise him of his rights in order to continue to talk to him; because the agents suspected that appellant had committed an offense under the UCMJ, he was entitled to be advised of his Article 31(b) rights).
(situations that involve an operational context may relieve law enforcement from giving Article 31(b) rights where immediate operational issues are implicated).
(under the facts of this case, the questions asked of appellant by the law enforcement agents were asked pursuant to an official law-enforcement investigation and not asked under circ*mstances that would warrant application of the operational exigency exception to providing Article 31(b) warnings, where appellant was questioned while he was seeking the protection of law enforcement from what he perceived to be a threat to himself and his wife and the agents perceived no immediate threat to the base; simply put, there was no immediate operational necessity that required the agents to forgo the Article 31(b) warnings).
(the express language of Article 31 does not permit a false official statement offense to be based upon an erroneously unwarned statement).
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 circ*mstances 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, 51MJ 401, 405 (CAAF 1999) applies).
(Article 31(b), UCMJ, is a statutory precursor to Miranda v. Arizona, 384US 436 (1966), and implements the Article 31(a), UCMJ, privilege against compulsory self-incrimination; its warning requirement provides members of the armed forces with statutory assurance that the standard military requirement for a full and complete response to a superior’s inquiry does not apply in a situation when the privilege against self-incrimination may be invoked).
(Miranda v. Arizona, 384US 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 circ*mstances, 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, 51MJ 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, 384US 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 circ*mstances 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 circ*mstances, 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 circ*mstances 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. Akbar, 74 M.J. 364 (a public safety exception to Article 31, UCMJ, rights advisem*nt exists when life is endangered; as such, an unwarned statement is admissible under Article 31(b), UCMJ, when (1)the statement falls within the public safety exception and (2) the statement is voluntary; in this case, the military judge did nor err in admitting appellant’s confession under the public safety exception where the security officer conducted his questioning of appellant, without providing him any Article 31(b), UCMJ, warnings, in a combat staging area shortly after appellant’s deadly attack on the brigade’s officer corps on the eve of battle; at the time of the questioning, the perpetrator of the attack remained at large and his identity was unclear; the questioning ensured that no further life would be endangered by seeking to definitively ascertain the identity of the attacker; once the security officer obtained appellant’s admission that he was the perpetrator, he ceased all questioning, further indicating that the questions were elicited solely to secure the safety of the camp).
(Article 31(b), UCMJ, warnings are not required when an accused’s questioner is fulfilling his operational responsibilities and not attempting to evade constitutional or codal rights; in this case, the security officer who questioned appellant following the attack, without providing him with Article 31(b), UCMJ, warnings, was fulfilling his operational responsibilities as demonstrated by the obvious safety concerns given the urgency of the threat to the unit after the attack and his limited questioning of appellant; thus, there was no need to provide appellant with Article 31(b), UCMJ, warnings).
(when evaluating the voluntariness of a statement, an appellate court reviews the totality of the circ*mstances to determine whether appellant’s will was overborne and his capacity for self-determination was critically impaired; this inquiry examines the accused’s age, education, experience and intelligence; in this case, certain factors support the position that appellant’s statement to the security officer was coerced, such as appellant being physically secured and questioned by a superior commissioned officer; however, any other coercive factors were minimal; under the totality of the circ*mstances, appellant’s confession was voluntary given his age, his college education, his rank as an NCO, and his intelligence).
United States v. Gilbreath, 74 M.J. 11 (the plain language of Article 31(b), UCMJ, as informed by the legislative purpose behind the article, makes the article applicable to members of the IRR).
(in the context of this case, a senior active duty NCO’s questioning of appellant, a member of the IRR, required an Article 31(b), UCMJ, rights advisem*nt because it involved (1) a person subject to the UCMJ, (2) interrogating or requesting any statement, (3) from an accused or person suspected of an offense, and (4) the statements regarded the offense of which the person questioned was accused or suspected; this was also a case in which the military questioner was acting or could reasonably be considered to be acting in an official law-enforcement or disciplinary capacity).
(a plain text reading of Article 31(b), UCMJ, indicates that it is a proscription that applies to the questioner; thus, the appropriate analysis works forward from whether the facts and circ*mstances require the questioner to comply with Article 31(b), UCMJ, not from the question of whether the suspect is entitled to Article 31(b), UCMJ, rights; the plain text of the statute also draws a distinction between the questioner, who is a person subject to the UCMJ, and the individual being questioned, who is an accused or a person suspected of an offense; this latter provision directs itself to a person who is suspected of an offense under the UCMJ, and is not addressed to the military status of the person questioned; the reach of Article 31(b), UCMJ, however, is not unlimited; the text is limited to interrogation and the taking of any statement; thus, application of Article 31(b), UCMJ, involves a contextual assessment of what is meant by interrogation and the taking of any statement in the armed forces).
(Article 31(b), UCMJ, should not be interpreted to reach literal but absurd results, such as imposing a rights warning requirement in an operational context where it could impede success of the military mission; rather, the purposes behind the article are looked at to inform its contextual application).
(Congress intended Article 31(b), UCMJ, to address the subtle and not so subtle pressures that apply to military life and might cause members of the armed forces to feel compelled to self-incriminate; the IRR can be every bit as coercive, or respectful of military grade and rank as active duty service; because an IRR servicemember may well feel compelled to respond to an official military questioner without considering any privilege against self-incrimination, Article 31(b), UCMJ, applies in the case of an active duty military servicemember questioning a member of the IRR; Article 31(b), UCMJ, governs official questioning in the military justice system, and absent any statutory command to the contrary, an IRR member who is sufficiently integrated into the military to qualify for court-martial jurisdiction is sufficiently integrated so as to be entitled to the statutory protection of the article).
(under the circ*mstances of this case where a senior NCO questioned appellant, a member of the IRR, about a missing weapon, the NCO was acting in an official capacity when he questioned appellant because he was acting at the direction of his superior commissioned officer, he immediately reported the progress of the investigation to that officer, and he used elicitation tactics to discover more information than appellant initially volunteered; in this setting, the NCO was acting or could reasonably be considered to be acting in an official law-enforcement or disciplinary capacity during the questioning).
(there is no such thing as a casual discussion about a missing or stolen weapon in the Marine Corps; an individual member of the Ready Reserve equipped with this cultural knowledge might feel compelled to respond to questions about a missing or stolen weapon asked by a more senior NCO; thus, once a senior NCO suspected appellant, a member of the IRR of committing larceny of a weapon, he was required under Article 31(b), UCMJ, to advise him of his privilege against self-incrimination before pursuing further questioning).
(the UCMJ and the MRE provide that a statement obtained without a rights warning is akin to an involuntary statement, and is inadmissible).
(Article 31(b), UCMJ, applies to active duty military members questioning members of the IRR; as a result, depending on the facts and circ*mstances of a particular case, an active duty military questioner may be required to warn an individual member of the Ready Reserve against self-incrimination).
2013 (September Term)
United States v. Jones, 73 M.J. 357 (Congress passed Article 31(b) to provide servicepersons with a protection which, at the time of the Uniform Code's enactment, was almost unknown in American courts, but which was deemed necessary because of subtle pressures which existed in military society; the Article 31(b) warning requirement provides members of the armed forces with statutory assurance that the standard military requirement for a full and complete response to a superior’s inquiry does not apply in a situation when the privilege against self-incrimination may be invoked; under Article 31(b), UCMJ, no person subject to the UCMJ may interrogate or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial).
(under Article 31(b), UCMJ, warnings are required when (1) a person subject to the UCMJ, to include “a knowing agent,” such as a civilian law enforcement agent working for military criminal investigatory services, (2) interrogates or requests any statement, (3) from an accused or person suspected of an offense, and (4) the statements regard the offense of which the person questioned is accused or suspected).
(although Article 31(b), UCMJ, seems straightforward, were its textual predicates applied literally, Article 31(b) would potentially have a comprehensive and unintended reach into all aspects of military life and mission; because the mandatory exclusion of statements taken in violation of Article 31, UCMJ, is a severe remedy, the second textual predicates - interrogation and the taking of ‘any’ statement – have been interpreted in context, and in a manner consistent with Congress’s intent that the article protect the constitutional right against self-incrimination).
(under Article 31(b)’s second requirement, rights warnings are required if the person conducting the questioning is participating in an official law enforcement or disciplinary investigation or inquiry, as opposed to having a personal motivation for the inquiry; this is determined by assessing all the facts and circ*mstances at the time of the interview to determine whether the military questioner was acting or could reasonably be considered to be acting in an official law-enforcement or disciplinary capacity; this second determination is judged by reference to a reasonable man in the suspect’s position).
(on its face, the objective standard of Article 31(b)’s second requirement is potentially problematic in relation to the use of undercover officers or informants who clearly act in an official capacity; judicial discretion, however, indicates a necessity for denying Article 31(b)’s application to a situation not considered by its framers, and wholly unrelated to the reasons for its creation; because undercover officials and informants do not usually place the accused in a position where a reasonable person in the accused’s position would feel compelled to reply to questions, this same logic dictates that Article 31(b), UCMJ, would not apply in those situations; this conclusion is consistent with the Supreme Court’s undercover agent exception in the Miranda v. Arizona (384 US 436 (1966)) context).
(United States v. Duga (10 MJ 206 (CMA 1981)) purported to set forth a two-part test that required Article 31, UCMJ, warnings only where the person questioning was acting in an official capacity and the person questioned perceived that the inquiry involved more than a casual conversation; the CAAF now expressly rejects the second, subjective, prong of the Duga test, which has been eroded by more recent cases articulating an objective test).
(in this case, the military judge did not abuse his discretion in admitting appellant’s statement about a recent burglary to an infantryman when he concluded that the infantryman was not acting and could not reasonably be considered by appellant to be acting in an official law enforcement or disciplinary capacity when he questioned appellant; as a result, Article 31(b), UCMJ, warnings were not required, and appellant’s statement was properly admitted; although at the time of questioning, the infantryman was also serving as a military police augmentee, was involved in the investigation of the burglary, and immediately reported the results of his conversation with appellant to his chain of command, he had a personal motivation for questioning appellant based on a prior interaction, he did not exercise a disciplinary role with respect to appellant, he had limited law enforcement authority and responsibilities as an MP augmentee, he was not permitted to perform MP duties without his MP partner present or any MP functions when he was off-duty, he was not authorized to fill out rights waiver forms, take sworn statements, or question suspects, he was treated by the MPs as a registered source, signifying that he was not acting as an official MP augmentee at the time of the questioning, and he questioned appellant outside the presence of his MP partner and while he was off-duty; furthermore, a reasonable person in appellant’s position could not have considered the infantryman to be acting in an official law enforcement or disciplinary capacity where appellant was an actual MP who seemingly understood the limited authorities and responsibilities of an MP augmentee, where at the time of the questioning, the infantryman was junior in rank to appellant, where appellant had earlier asked the infantryman to join him in committing the burglary, and where appellant, not the infantryman, locked the housing unit door during the questioning).
2012 (September Term)
United States v. Mott, 72 M.J. 319 (a waiver of an accused’s Fifth Amendment and Article 31, UCMJ, rights to counsel must be knowing and intelligent, and not merely voluntary).
(an accused’s statement during a custodial interrogation is inadmissible at trial unless the prosecution can establish that the accused in fact knowingly and voluntarily waived Miranda rights).
(in the military system the accused’s right to counsel, and the requirement of knowing and voluntary waiver, are not limited to custodial interrogation; military officials and civilians acting on their behalf are required to provide rights warnings prior to interrogating a member of the armed forces if that servicemember is a suspect, irrespective of custody).
(voluntariness of consent and knowing waiver of an accused’s right to counsel are two distinct and discrete inquiries; in addition to showing that the waiver was voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception, the government must also demonstrate that the accused understood his right to counsel and intelligently and knowingly relinquished it).
(the accused has to have full awareness of both the nature of the right to counsel being abandoned and the consequences of the decision to abandon it; however, the Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege; in other words, the accused must fully understand the nature of the right and how it would likely apply in generalin the circ*mstances, even though the defendant may not know the specific detailed consequences of invoking it; the analysis should take into account the accused’s age, experience, education, background, and intelligence, and his capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights; and the government must show waiver by a preponderance of the evidence).
(there are two branches to the waiver of the right to counsel analysis; first, was the waiver voluntary; and, second, was the waiver knowing and intelligent).
(whether an accused’s waiver of his right to counsel was knowing and intelligent is a conclusion of law rather than a conclusory finding of fact).
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).
(fidelity to the doctrine announced in Miranda v. Arizona, 384 US 436 (1966) (establishing procedural safeguards to secure the privilege against self-incrimination during an accused’s custodial interrogation), requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated).
2008 (September Term)
United States v. Chatfield, 67 M.J. 432 (by its terms, Article 31(b), UCMJ, only applies when a member of the military interrogates, or requests any statement from, an accused or a person suspected of an offense).
UnitedStates v. Delarosa, 67 M.J. 318 (under Article31(b), UCMJ, and MRE 305(b)(1)and (c), military officials and civilians acting on their behalf arerequiredto provide rights warnings prior to interrogating a member of the armedforcesif that servicemember is a suspect, irrespective of custody).
2007
United States v. Gardinier, 65 M.J. 60 (a militaryinvestigator who interviews a suspect must provide that suspect withthe statutorily required rights warnings under Article 31(b), UCMJ;with few exceptions, statements obtained in violation of this articlemay not be received in evidence against an accused in a trial bycourt-martial).
(a military judge’s failure toexclude an accused’s statement to a military CID agent and anaccompanying videotape of that interview, which followed an earlierinterview conducted by a civilian detective who gave the accused two Mirandawarnings, was error, where the military CID agent failed to give theaccused a rights advisem*nt under Article 31(b), UCMJ, and where thecivilian detective was not conducting a joint investigation with themilitary CID agent at the time; Article 31(b) rights differ slightlyfrom Miranda rights; Congress enacted Article 31(d) as a strictenforcement mechanism to implement the rights’ warning requirements ofArticle 31(b); Article 31(d) provides that no statement obtained fromany person in violation of this article may be received in evidenceagainst him in a trial by court-martial; in addition, MRE 305(a) and(c) provide that statements obtained without a proper rights warningare defined as involuntary and excluded from evidence by operation ofMRE 304(a)).
(where an earlier statementwas involuntary only because the accused had not been properly warnedof his Article 31(b), UCMJ, rights, the voluntariness of the secondstatement is determined by the totality of the circ*mstances; anearlier unwarned statement is a factor in this total picture, but itdoes not presumptively taint the subsequent statement; if a cleansingwarning has been given -- where the accused is advised that a previousstatement cannot be used against him -- that statement should be takeninto consideration; if a cleansing statement is not given, however, itsabsence is not fatal to a finding of voluntariness).
2006
(inthis case, theFamily Advocacy treatment manager who initially questioned the accusedabout anincident involving his showing pictures of naked adult women to hiseight-year-old stepdaughter was acting as an investigative agent of lawenforcement for the purposes of an Article 31 warnings requirement byvirtue of her close coordination with base legal and investigativepersonnel;not only was the manager part of the Child Sexual Maltreatment ResponseTeam(CSMRT) which included an OSI agent and a judge advocate, the CSMRTdecidedthat the manager would conduct the first interview of the accused todetermineif there was enough evidence to proceed with the investigation, and themanagersaid that she was not treating the accused for any condition; the firstthingshe asked the accused when he arrived for his interview was “[d]id youdo it?”;although the cooperative effort required by the Air Force familyadvocacyinstruction does not render every member of the military community acriminalinvestigator or investigative agent, the manager’s actions here weremore akinto an investigative agent than a social worker; thus, she was a personsubjectto the code for the purposes of Article 31(b) and MRE 305(c)).
(Article 31(b) contains fourtextual predicates; first, thearticleapplies to persons subject to the UCMJ; second and third, the articleappliesto interrogation or requests for any statements from an accused or apersonsuspected of an offense; and fourth, the right extends to statementsregardingthe offenses of which the person questioned is accused or suspected;withrespect to Article 31(b)’s third textual predicate, an appellate courtappliesan objective test; whether a person is a suspect is an objectivequestion thatis answered by considering all the facts and circ*mstances at the timeof theinterview to determine whether the military questioner believed orreasonablyshould have believed that the servicemember committed an offense).
(in this case, the accused wasentitled to an Article 31rightsadvisem*nt prior to his being interviewed by the Family AdvocacyTreatmentmanager where the manager was a person subject to the code by virtue ofherclose coordination with base legal and investigative personnel, whereshesuspected the accused of an offense, and where the first question sheasked theaccused was whether he committed the offense).
United Statesv. Cohen,63 M.J. 45 (Article 31(b) contains four textual predicates; first, thearticleapplies to persons subject to the UCMJ; second and third, the articleappliesto interrogation or requests for any statements from an accused or apersonsuspected of an offense; and fourth, the right extends to statementsregardingthe offenses of which the person questioned is accused or suspected).
(where a military questioneris performing a law enforcementordisciplinary investigation, and the person questioned is suspected ofanoffense, then Article 31 warnings are required; whether the questionershouldbe considered to be performing such an investigation is determined byassessingall the facts and circ*mstances at the time of the interview todeterminewhether the military questioner was acting or could reasonably beconsidered tobe acting in an official law-enforcement or disciplinary capacity).
(where the military questioneris not acting in a lawenforcement ordisciplinary capacity, rights warnings are generally not required,becausemilitary persons not assigned to investigate offenses, do notordinarilyinterrogate nor do they request statements from others accused orsuspected ofcrime).
(where the military questioneris acting in an unofficialcapacityand the person questioned does not perceive the questioning as morethan casualconversation, warnings are not required; such an informal exchangewould notimplicate the interrogation or statement predicate of Article 31(b) orCongress’ concern that, in the military context, junior enlistedpersonnelmight feel undue pressure to make incriminating statements).
(Article 31(b) is interpretedin a manner that recognizesthedifference between questioning focused solely on the accomplishment ofanoperational mission and questioning to elicit information for use indisciplinary proceedings; where there is a mixed purpose behind thequestioning, the matter must be resolved on a case-by-case basis,looking atthe totality of the circ*mstances, including whether the questioningwasdesigned to evade the accused’s constitutional or codal rights).
(questioning by a militarysuperior in the chain of commandwillnormally be presumed to be for disciplinary purposes, and a rightswarning willbe required).
(with respect to Article31(b)’s third textual predicate(i.e.,whether a person is a suspect), this Court applies an objective test;whether aperson is a suspect is an objective question that is answered byconsideringall the facts and circ*mstances at the time of the interview todeterminewhether the military questioner believed or reasonably should havebelievedthat the servicemember committed an offense).
(the military judge’s findingthat the IG had no criminalinvestigator or disciplinary duties that would require the IG to give arightswarning was clearly erroneous; although the IG’s responsibilities wereprimarily administrative, they were not exclusively so; among otherthings, theIG was responsible for investigating wrongdoing and reporting criminalviolations to the office of special investigations; significantly, theconfidentiality that the IG could offer to complainants did not extendtocriminal conduct).
(in an interview withappellant concerning his complaintsabout thelength of time it was taking to process his security clearance and thedenialof a leave request, the IG should have reasonably suspected appellantof theoffense of indecent acts and given him an Article 31(b) rights warningwhenappellant described his role in taking pictures of a rape incident).
2005
UnitedStates v. Rodriguez, 60 MJ 239 (there are at least two circ*mstances when civilianinvestigatorsworking in conjunction with military officials must comply with Article31warning requirement: (1) when the scope and character of thecooperativeefforts demonstrate that the two investigations merged into anindivisibleentity; and (2) when the civilian investigator acts in furtherance ofanymilitary investigation, or in any sense as an instrument of themilitary).
(ATF agent was not acting as an instrumentalityof themilitary when agent began questioning appellant during investigatorystop andsearch of his vehicle, and thus agent was not required to advise him ofhisArticle 31 rights; ATF agent was conducting a separate and independentATFinvestigation; surveillance support that NIS provided prior to the stopdid notamount to a military investigation that merged indivisibly with the ATFefforts).
UnitedStates v. Traum, 60 MJ 226 (no person subject to theUCMJ mayinterrogate or request any statement from a person suspected of anoffensewithout first warning that person in accordance with Article 31(b);interrogation includes any formal or informal questioning in which anincriminating response either is sought or is a reasonable consequenceof suchquestioning).
2003
UnitedStates v. Pipkin, 58 MJ 358 (it is not necessaryto spellout the details of an accused's connection with the matter underinquiry withtechnical nicety; moreover, advice as to the nature of the charge neednot bespelled out with the particularity of a legally sufficientspecification; it isenough if, from what is said and done, the accused knows the generalnature ofthe charge; a partial advice, considered in light of the surroundingcirc*mstances and the manifest knowledge of the accused, can besufficient tosatisfy the notice requirement of Article 31, UCMJ).
(it is not necessary that an accused or suspect be advised of eachand everypossible charge under investigation, nor that the advice include themostserious or any lesser-included charges being investigated;nevertheless, theaccused or suspect must be informed of the general nature of theallegation, toinclude the area of suspicion that focuses the person toward thecirc*mstancessurrounding the event).
(possible factors that might be considered in determining whetherthenature-of-the-accusation requirement is satisfied include whether theconductis part of a continuous sequence of events, whether the conduct waswithin theframe of reference supplied by the warnings, or whether theinterrogator hadprevious knowledge of the unwarned offenses; these factors are notexhaustive,but are among the possible factors to be considered; necessarily, inquestionsof this type, each case must turn on its own facts; other factors mightalsobear on the application of Article 31(b), including, as in this case,thecomplexity of the offense at issue).
(the precision and expertise of an attorney in informing an accusedof thenature of the accusation under Article 31 is not required).
(a warning on distribution will better orient a suspect to asuspicion ofconspiracy to distribute than a warning on use and possession; theGovernmenthas the burden of establishing compliance with rights warningrequirements by apreponderance of the evidence; the military judge concluded that theGovernmenthad met its burden in this case; the discrepancy between the oralwarning (use,possession, and distribution) and the rights advisem*nt form (use andpossession) is not enough to find the military judge’s findings clearlyerroneous; appellant’s response to investigators, that the interviewhad to dowith his former roommate (and conspirator) and drugs, makes it clearthat hewas oriented to the nature of the accusation; thus, we hold that thechargedconspiracy was within the frame of reference supplied by the warningsfor thepurposes of Article 31, UCMJ).
UnitedStates v. Traum, 60 MJ 226 (a request to take apolygraph mayarise in a variety of circ*mstances related to interrogation; in eachinstance,the question will be whether an incriminating response is sought or isthereasonable consequence of the comment or remark; of course, an Article31(b)rights advisem*nt prior to such a question would remove the necessityfor suchanalysis).
(inthis case, alaw enforcement agent’s request that the accused take a polygraph wasnot aninterrogation or request for a statement within the meaning of Article31, anddid not require warnings, where the reasonable consequence of therequest wasnot an incriminating response; the reasonable consequence of theagent’s questionin the context presented was either yes or no; in addition, thepolygraph andits operator were located in an adjacent room, and the agent’sobjective was toencourage the accused to take a polygraph and not to ask questions thatmightserve as an investigative substitute for what the agents hoped togarner fromthe administration of the polygraph exam).
2002
UnitedStates v. Guyton-Bhatt, 56 MJ 484 (there is atwo-prongtest to determine whether an Article 31 warning is required: (1)was aquestioner subject to the Code acting in an official capacity in hisinquiry oronly with a personal motivation; and (2) whether the person questionedperceived that the inquiry involved more than a casual conversation).
(Article 31, UCMJ, warnings are not required to be given by:(1) amilitary doctor, psychiatric social worker, or nurse prior to askingquestionsof a patient for medical diagnosis or treatment; (2) an in-flightaircraft crewchief prior to questioning, for operational reasons, an irrationalcrewmanabout possible drug use; (3) military pay officials questioning aservicememberabout a pay or allowance entitlement; or (4) a negotiator trying to endan armedstandoff, provided the discussion was truly designed to end thestandoff,rather than to obtain incriminating statements to be used against thesuspectat trial).
(military defense counsel may not deliberately seek incriminatinganswersfrom a suspect unrepresented by counsel without first giving Article31, UCMJ,rights warnings).
(legal assistance officer who, upon being shown a promissory note,suspectedforgery and felt appellant had committed a criminal offense, whor*commendedonly criminal action, and who called appellant using the authority ofhisposition to solicit information on the matter, was acting as aninvestigator inpursuing this criminal action and was required to give an Article 31warning).
(where nearly all of the information secured by a legal assistanceofficerin violation of Article 31 was introduced at trial through independentsources,the error in admitting appellant’s statements to the legal assistanceofficerwas harmless beyond a reasonable doubt.
(Article 31(b) would apply to a foreign interrogation only if it isshownthat the foreign authorities were acting as an agent of the militaryduringtheir interrogations of a suspect).
(under either a de novo standard of review or clearlyerroneousstandard because under either standard, the military judge’s ruling wascorrectbecause appellant did not meet his burden of establishing that theIcelandicinvestigators were acting under the control or at the direction of theNavalinvestigators so as to trigger a requirement for Article 31 warnings).
(limited assistance that NCIS agents provided to the Icelandicpolice inthis case, such as locating appellant and American witnesses, wasundertakenpursuant to the defense agreement between the two countries, and didnotconstitute “participation” within the meaning of the Mil.R.Evid.305(h)(2)).
UnitedStates v. Alameda, 57 MJ 190 (privilege againstself-incrimination recognized in Article 31(a), supra, is virtuallyidenticalto the privilege under the Fifth Amendment; thus, Fifth Amendmentanalysis alsoapplies to Article 31(a)).
UnitedStates v. Benner, 57 MJ 210 (when a chaplainquestions apenitent in a confidential and clerical capacity, the results may notbe usedin a court-martial because they are privileged; therefore, the Article31(b)and Tempia warnings are not required; conversely, if a military officerwho isalso a chaplain acts on the premise that the penitent’s disclosures arenotprivileged, then warnings are required).
(a chaplain was acting outside his responsibilities as a chaplain,and hewas acting solely as an Army officer where the chaplain informedappellant thathe was obliged to report appellant’s action; as such, he was requiredtoprovide an Article 31 warning before further questioning).
2001
UnitedStates v. Simpson, 54 MJ 281 (the government hastheburden of establishing compliance with rights warning requirements by apreponderance of the evidence).
(whether that portion of the rights warning requiring that thesuspect beinformed of “the nature of the accusation” was inconsistent withapplicablerights warning requirements is reviewed de novo).
(in fulfilling the obligation of inform a suspect about the natureof theaccusation, it is not necessary that an accused or suspect be advisedof eachand every possible charge under investigation, nor that the adviceinclude themost serious or any lesser-included offenses being investigated;nevertheless,the accused or suspect must be informed of the general nature of theallegation, to include the area of suspicion that focuses the persontoward thecirc*mstances surrounding the event).
(among the factors to consider in determining whether a suspect hasbeensatisfactorily informed about the nature of the accusation are:whetherthe conduct is part of a continuous sequence of events; whether theconduct waswithin the frame of reference supplied by the warnings; or whether theinterrogator had previous knowledge of the unwarned offenses).
(advising suspect that he was being questioned about indecent actsorliberties with a named individual sufficiently oriented appellant tothe natureof the accusations against him where the indecent acts and sodomy weresufficiently related so that the warning oriented appellant toward thenatureof the accusations against him).
UnitedStates v. Norris, 55 MJ 209 (Article 31(b) appliesonly tosituations in which, because of military rank, duty, or other similarrelationship,there might be subtle pressure on a suspect to respond to an inquiry,and twoprerequisites must be met before Article 31(b) will apply: (1) aquestioner subject to the Code was acting in an official capacity inhisinquiry as opposed to only having a personal motivation; and (2) thepersonquestioned must perceive that the inquiry involved was more than acasualconversation).
(in reviewing a military judge’s ruling on a motion to suppressunderArticle 31(b), Court applies a clearly-erroneous standard of review tofindingsof fact and a de novo standard to conclusions of law).
(questioner was acting in a personal rather than an officialcapacity inconversation with accused, and Article 31(b) did not apply,where: (1)the questioner’s purpose was to understand and clarify the content of aletterwritten by his daughter to a man who had become a friend; (2)questioner didnot seek out the accused with a view towards elevating the matter to acriminalinvestigation and prosecution; (3) at the time of the conversation,questionerconsidered the situation to be a family matter; and (4) the findings offact,supported by the evidence, indicate that the conversation was betweenfriends).
UnitedStates v. Catrett, 55 MJ 400 (whether a suspect isincustody for purposes of Mirandawarnings is a de novoquestion oflaw to be decided on the basis of the facts found by the factfinder).
(appellant was in custody for purposes of Miranda warningswhere: (1) the police told appellant he was not free to leave thelivingroom unless a police officer accompanied him; (2) there was always anofficerpresent to control appellant’s movements; (3) an officer testified thatappellant was under detention, not free to leave, and would have beenstoppedif he attempted to do so; and (4) appellant never left the living roomuntil hewas taken to the police station).
(a “public safety” exception to Miranda warningsrequirementappliedwhere: (1) civilian police were responding to a domestic-assaultcomplaint in which a gun was reportedly involved; (2) an empty holsterwasfound during a search of appellant’s apartment before the challengedquestioning; and (3) the questions asked by the police, althoughphrased interms of the cause of the reported assault, were found by the judge tobelegitimate attempts by police to locate the still-missing gun).
(U.S. Court of Appeals for the Armed Forces rejects argument thatexceptionsto the constitutionally based Mirandarule may not be carvedout by theSupreme Court, citing Dickersonv. United States, 530 U.S. 428,441(2000)).
(assuming a Mirandaviolation, admitting appellant’sstatement tocivilian police that he hit the victim with a dog bone and a statue washarmless beyond a reasonable doubt where the victim testified to thesameassault, eyewitness statements from appellant’s wife to the same effectwereadmitted, and the bloodied dog bone was discovered in plain view beforeappellantmade the challenged incriminating admissions).
2000
UnitedStates v. Swift, 53 MJ 439 (Congress, by statute,hasprovided members of the armed forces with a rights’ warning requirementthat isbroader than the warnings required in a civilian setting as a matter ofconstitutional law under Mirandav. Arizona, 384 U.S. 435(1966)).
(case law has interpreted Article 31 in a manner that recognizes thedifferences between questioning focused on the accomplishment of amilitarymission and questioning to elicit information for use in disciplinaryproceedings; thus, warnings under Article 31 have been requiredwhere:(1) the person being interrogated is a suspect at the time of thequestioning;and, (2) the person conducting the questioning is participating in anofficiallaw enforcement or disciplinary investigation or inquiry).
(whether a person is a “suspect” is an objective question thatrequiresconsideration of all the facts and circ*mstances at the time of theinterrogation to determine whether the military questioner believed orreasonably should have believed that the servicemember committed anoffense).
(whether questioning is for law enforcement or disciplinary purposesisdetermined by assessing all the facts and circ*mstances at the time oftheinterview to determine whether the military questioner was acting orcouldreasonably be considered to be acting in an official law-enforcement ordisciplinary capacity).
(questioning by a military superior in the immediate chain ofcommand willnormally be presumed to be for disciplinary purposes).
(findings of fact made in support of a ruling on a motion tosuppress astatement on the grounds that Article 31 was not complied with arereviewedusing a clearly-erroneous standard; conclusions of law are reviewed denovo).
(information coming to the attention of a military official thatraisesquestions about the eligibility status of a servicemember’s spouse ordependentsfor military benefits does not, in itself, establish a basis fordesignatingthat member as a suspect for purposes of Article 31, even if thequestioningofficial has a “hunch” that further inquiries may disclose a crime).
(in light of the relatively low quantum of evidence required totreat anindividual as a suspect, appellant reasonably should have been viewedas asuspect of the offense of bigamy where the commander and first sergeanthadinformation generally reflecting two alleged wives, an alleged divorcedecreewhich the first wife claimed to know nothing about and which could notbeconfirmed by resort to civilian court records, and conflicting dataaboutappellant’s spouse in military records; where the first sergeant alsohadrecently counseled appellant on matters relating to first wife, yetsecond wifeasserted that a divorce had taken place two years earlier; where firstsergeantconsidered this situation unusual and consulted the Manual forCourts-Martialconcerning bigamy; and where, when appellant denied the allegations,firstsergeant advised appellant of the maximum punishment for bigamy).
(under circ*mstances of this case, government failed to rebut thestrongpresumption that first sergeant was part of an investigation thatincludeddisciplinary purposes).
(exclusionary rule of Article 31(d) applies to all offenses, nomatter howserious).
(an unwarned statement made during an investigation and obtained inviolation of Article 31(b) may not be introduced by the prosecutionagainst anon-testifying servicemember to prove the offense of false officialstatement).
(with respect to conviction for bigamy, court was satisfied beyond areasonable doubt that appellant was not prejudiced by unwarnedstatements wheresignificant evidence was adduced which was not derived from theunwarnedstatements).
(court set aside conviction for false official statement baseddirectly uponinadmissible, unwarned statements of appellant).
(a person may be required to produce specific documents even thoughtheycontain incriminating assertions of fact or belief when the creation ofthosedocuments was not compelled within the meaning of the privilege againstself-incrimination; the contents of documents voluntarily preparedbefore thecompelled production are not protected by the Fifth Amendment orArticle 31(a)because the documents could not be said to contain compelledtestimonialevidence).
(where the record indicated that appellant voluntarily created apurporteddivorce decree before first sergeant requested its production,appellant couldnot have objected to producing a divorce decree solely on the basisthat thefraudulent contents were incriminating).
(under the required records exception to the Fifth Amendment andArticle31(a), neither the content nor the act of production of documents areprotectedby the Fifth Amendment if the government can satisfy the followingtest:(1) the requirement that the records be kept must be essentiallyregulatory;(2) the records must be the kind which the regulated party hascustomarilykept; and (3) the records themselves must be either public documents orhaveassumed public aspects which render them at least analogous to publicdocuments).
(even if appellant’s act of producing a divorce decree hadtestimonialaspects which were arguably incriminating, the production would fallwithin the“required records” exception to the Fifth Amendment and Article 31(a)where: (1) the requirement to produce a divorce decree in ordertoestablish and update military records supporting spousal eligibilityforbenefits was regulatory and served a legitimate administrative purpose;(2) adivorce decree is the type of record customarily kept by a party; and(3) it isa public record).
1999
UnitedStates v. Mitchell, 51 MJ 234 (in deciding whetherquestioningby command authorities constitutes interrogation, care must beexercised toensure that a suspect’s sense of loyalty, trust, and confidence inleaders doesnot obscure his/her legal rights under the Constitution and the UCMJ).
(totality of the circ*mstances will be considered to determinewhetherquestioning by a representative of command is an interrogation).
2021 (October Term)
United States v. Whiteeyes, 82 M.J. 168 (MRE 304(c)(1) prohibits a court-martial from considering an accused’s admission or confession as evidence of guilt unless independent evidence, either direct or circ*mstantial, has been admitted into evidence that would tend to establish the trustworthiness of the admission or confession).
(it is a settled principle that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused; this principle is based on the imperative to prevent errors in convictions based upon untrue confessions alone, and on the knowledge arising from judicial experience that confessions may be unreliable because they are coerced or induced
(the corroboration rule outlined in MRE 304(c) is a rule designed to ensure that a conviction cannot be based solely on an uncorroborated, out-of-court admission or confession of the accused; this rule was specifically intended to guard against the admission at trial of false or coerced confessions).
(the corroboration rule outlined in MRE 304(c) does not apply to all admissions or confessions of an accused; corroboration is not required when an accused makes a statement at his own court-martial, when an accused makes a statement prior to or contemporaneously with the criminal conduct, or when the statement made by the accused is offered under a rule of evidence other than that pertaining to the admissibility of admissions or confessions).
(MRE 304(c) controls the standards and procedures that a military judge must employ when deciding whether an admission or confession of an accused has been corroborated; any elements of the common law doctrine of corpus delicti that conflict with the plain language of MRE 304(c) must yield to the rule).
(when the government seeks to introduce an admission or confession of an accused, it must proffer to the military judge evidence that it believes corroborates the accused’s statement; consistent with MRE 104(b), the military judge may admit into evidence each piece of the proffered evidence on a conditional basis in order to make his or her MRE 304(c) determination; in making this MRE 304(c) determination, the military judge first must decide whether the proffered evidence is in fact independent evidence; independent evidence cannot consist of other uncorroborated confessions or admissions of the accused that would themselves require corroboration; however, the independent evidence may be either direct or circ*mstantial; the military judge next must decide whether each piece of independent evidence raises an inference of the truth of the admission or confession; if an individual piece of independent evidence meets this threshold, the military judge may then use that evidence in the process of determining whether the accused’s statement is corroborated; a piece of independent evidence may reach this threshold even where it raises an inference of the truth only when considered alongside other independent evidence; the military judge finally must decide whether the pieces of independent evidence, considered together, corroborate the accused’s admission or confession; in making this determination, the military judge must assess whether the pieces of independent evidence would tend to establish the trustworthiness of the admission or confession; if they do, the military judge will rule that the accused’s statement is corroborated and will admit the statement into evidence; as a result, the trier of fact may consider the admission or confession as evidence against the accused on the question of guilt or innocence; however, the trier of fact may also consider the amount and type of evidence introduced as corroboration in determining the weight, if any, to be given to the admission or confession).
(the two quantum thresholds contained in MRE 304(c) are low; first, in order for a military judge to consider a piece of proffered independent evidence for corroboration purposes, that evidence merely needs to raise an inference of the truth of the admission or confession; second, in order for a military judge to conclude that the independent evidence corroborates an accused’s admission or confession, that evidence merely needs to tend to establish the trustworthiness of the admission or confession).
(in this case, the military judge did not err when he ruled that there were certain pieces of independent evidence that raised an inference of the truth of appellant’s admissions or confessions related to the sexual abuse of his stepdaughter; furthermore, the military judge did not abuse his discretion when he ruled that these pieces of independent evidence, when considered together, tended to establish the trustworthiness of appellant’s admissions or confessions and admitted appellant’s statements into evidence under MRE 304(c)).
2018 (October Term)
United States v. Nicola, 78 M.J. 223 (under MRE 304(c)(3), corroboration is not required for a statement made by the accused before the court by which the accused is being tried).
2017 (October Term)
United States v. Jones, 78 M.J. 37 (in this case which was tried prior to the 2016 amendments to MRE 304(c), an admission or a confession of the accused could be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circ*mstantial, had been admitted into evidence that corroborated the essential facts admitted to justify sufficiently an inference of their truth; this corroboration requirement addressed traditional concerns about the possible untrustworthiness of admissions and confessions; although MRE 304(c) prior to the 2016 amendments required corroboration of each essential fact in the admission or confession, a military judge could redact a statement by excising the uncorroborated portions and then admitting the redacted statement into evidence).
(the 2016 amendments to MRE 304, which were not applicable to this case, provide that not every element or fact contained in a confession or admission must be independently proven for the confession or admission to be admitted in evidence in its entirety).
(in this case which was tried prior to the 2016 amendments to MRE 304(c), only a small quantum of evidence was needed to corroborate the essential facts in a confession or admission; the independent evidence necessary to establish corroboration did not need to be sufficient of itself to establish beyond a reasonable doubt the truth of facts stated in the admission or confession; the independent evidence needed only to raise an inference of the truth of the essential facts admitted; this corroborating evidence could be either direct or circ*mstantial; and the quantum of evidence needed only to be slight).
(in this case, independent circ*mstantial evidence corroborated the essential fact of appellant’s admission that the tools he sent home came from his unit’s woodshop in Afghanistan and thus were military property; appellant had access to the tools in the unit woodshop because he was the officer in charge of the unit woodshop; most of the tools that the government found at appellant’s home were carpentry tools like those in the unit woodshop; and the woodshop was a likely place in the deployed environment in Afghanistan to acquire woodworking tools; although these circ*mstances by themselves alone may not have proved beyond a reasonable doubt that appellant took the tools from the woodshop, in accordance with MRE 304(c), they supported an inference that appellant was speaking the truth when he confessed that he took them from the woodshop).
(in this case, independent circ*mstantial evidence corroborated the essential fact of appellant’s admission that he took the property with the intent to deprive the military of its property permanently and with the intent that his students use the tools at his school; there was enough independent evidence to support an inference of the essential fact that appellant had the intent permanently to deprive the military of its property, where appellant spent $579.38 of his own funds to mail fourteen separate shipments of military equipment, where appellant sent the tools to his personal address, rather than to the address of his unit, where the tools remained at his home or nearby until discovered by investigators, where appellant was informed of the proper procedures for sending military material back to the unit, but he did not use those procedures, and where the unit leadership also had not approved any plan for using the tools at the unit; in addition, there was enough independent evidence to support an inference of the essential fact that appellant specifically intended that his students would use the equipment at his school where appellant was a high school woodshop teacher, where he sent the tools to his home, where the tools were of the kind that could be used in the high school woodshop, and where the tools were not returned to the government - circ*mstantial evidence that established that appellant had access to the school, an opportunity to provide tools to students at the school permanently, and a possible motive for doing so).
2016 (October Term)
United States v. Swift, 76 M.J. 210 (as a rule, an admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence has been admitted into evidence that corroborates the essential facts admitted to justify sufficiently an inference of their truth).
2014 (September Term)
United States v. Adams, 74 M.J. 137 (MRE 304(c) reads, in pertinent part that an admission or a confession of the accused may be considered as evidence against the accused only if independent evidence has been introduced that corroborates the essential facts admitted to justify sufficiently an inference of their truth; if the independent evidence raises an inference of the truth of some but not all of the essential facts admitted, then the confession or admission may be considered as evidence against the accused only with respect to those essential facts stated in the confession or admission that are corroborated by the independent evidence).
(MRE 304(c) requires an amount of independent evidence sufficient to justify an inference of truth of the essential facts admitted from the confession; while a sufficient amount of evidence can be slight, the evidence must nevertheless be sufficient in quantity and quality to meet the plain language of the rule).
(the standard in MRE 304(c) is not a “trustworthiness” standard, where, if one part of the confession is found to be “trustworthy,” that “trustworthiness” can be extrapolated to those portions of the confession which are not supported by independent evidence, thereby allowing the entire confession to be admitted into evidence; MRE 304(c) expressly rejects the concept of extrapolating “trustworthiness” by requiring independent evidence of each essential fact to be corroborated).
(the corroboration requirement for admission of a confession at court-martial does not necessitate independent evidence of all the elements of an offense or even the corpus delicti of the confessed offense; rather, the corroborating evidence must raise only an inference of truth as to the essential facts admitted; nevertheless, the evidence corroborating the essential facts of the confession must be independent)
(what constitutes an essential fact of an admission or confession necessarily varies by case; essential facts include the time, place, persons involved, access, opportunity, method, and motive of the crime).
(when independent evidence which is sufficient to corroborate an essential fact is provided, that essential fact is admissible; if sufficient corroborating evidence of an essential fact is not provided, then the uncorroborated fact is not admissible and the military judge must excise it from the confession; the essential facts which are corroborated may be used against the accused alongside any other properly admitted evidence).
(there is no tipping point of corroboration that would allow admission of the entire confession if a certain percentage of essential facts are found to be corroborated; for instance, if four of five essential facts were corroborated, the entire confession is not admissible; only the four corroborated facts are admissible and the military judge is required to excise the uncorroborated essential fact; this analysis is completed by the military judge examining the potential corroboration for each essential fact the government wishes to admit).
(in this case, the military judge abused his discretion when he admitted numerous uncorroborated essential facts from appellant’s confession to larceny of cocaine; in a case where the only direct evidence of the crime was the confession, it is important to determine what was not corroborated; here, there was no evidence that corroborated appellant’s opportunity or motive to commit the crime, his access, his intent, the accomplices involved, the subject of the larceny (i.e., cocaine), the time of the crime, or the act of the larceny itself (appellant’s waving a handgun while an accomplice grabbed the cocaine); in short, virtually none of the facts previously articulated as essential to corroborating a confession were corroborated; even if one were to assume that the evidence relied upon below (the possession of a handgun, testimony concerning the existence of a specific drug dealer, and testimony regarding the location of a store and a hotel) properly corroborated the location of the larceny and the identity of the victim, those facts, combined with the ownership of the handgun, were legally insufficient to support the larceny conviction absent any additional direct evidence of a crime; and because the confession was the government’s key piece of evidence, the admission of the uncorroborated essential facts was prejudicial to appellant).
2011 (September Term)
United States v. McClain, 71 M.J. 80 (the standard for corroboration is very low; corroborating evidence must raise only an inference of truth as to the essential facts admitted; this inference may be drawn from a quantum of corroborating evidence that has been described as very slight).
2008 (Transition)
UnitedStates v. Harcrow, 66 M.J. 154 (admissions can only be usedas evidence if theyare independently corroborated; under MRE 304(g), an admission or aconfessionof the accused may be considered as evidence against the accused on thequestionof guilt or innocence only if independent evidence, either direct orcirc*mstantial, has been introduced that corroborates the essentialfactsadmitted to justify sufficiently an inference of their truth; thestandard forcorroboration is very low; corroborating evidence must raise only aninferenceof truth as to the essential facts admitted; this inference may bedrawn from aquantum of corroborating evidence that has been described as veryslight).
2005
UnitedStates v. Arnold, 61M.J. 254 (MRE 304(g) provides that an admission or a confession of theaccusedmay be considered as evidence against the accused on the question ofguilt orinnocence only if independent evidence has been introduced thatcorroboratesthe essential facts admitted to justify sufficiently an inference oftheirtruth; independent evidence is evidence that is not based on or derivedfromthe accused’s extrajudicial statements).
(the principle ofcorroboration embeddedin MRE 304(g), like the principle underpinning its civiliancounterparts, isintended to guard against the false or coerced confession; however,corroborating evidence need not confirm each element of an offense, butrathermust corroborate the essential facts admitted to justify sufficientlyaninference of their truth; this inference may be drawn from a quantum ofcorroborating evidence that this Court has described as very slight).
(testimony solely derived fromawitness’s review of an accused’s confession cannot independently servetocorroborate that confession).
2004
UnitedStates v. Seay, 60 MJ 73 (an admission or a confessionof theaccused may be considered as evidence against the accused on thequestion ofguilt or innocence only if independent evidence, either direct orcirc*mstantial, had been introduced that corroborates the essentialfactsadmitted to justify sufficiently an inference or their truth; thecorroborationrequirement for admission of a confession at court-martial does notnecessitateindependent evidence of all the elements of an offense or even of thecorpusdelicti of the offense; rather, the corroborating evidence must raiseonly aninference of truth as to the essential facts admitted; moreover, whilethereliability of the essential facts must be established, it need not bedonebeyond a reasonable doubt or by a preponderance of the evidence).
(appellantandthe other person named in the confession were seen with the victimshortlybefore he disappeared; the victim died as a result of foul play; thevictim’sbody was found in a concealed place; the post-mortem revealed nowallet; and nowallet was ever found; for the purposes of corroborating a confession,there isno requirement that the members conclude beyond a reasonable doubt, oreven bya preponderance of the evidence, that the corroborating facts alone(i.e.,without the confession) establish that this victim, in fact, carried awalletat the time of death; rather, the rule simply requires a presence offacts thatenable the members to infer the truth of the essential facts in theconfession;when a person confesses to participation in the larceny of a wallet, itisreasonable to infer the truth of the confession from the fact that thevictimnamed in the confession knew the appellant, died as a result of foulplay, wasfound in a concealed place, and did not have a wallet at the time orthereafter; we therefore hold that these reasonable inferencesadequatelycorroborated appellant’s confession).
2002
UnitedStates v. Cravens, 56 MJ 370 (appellant admittedon April1, 1997, to “doing a line”, and a police officer observed thatappellant’sdemeanor at that time also suggested recent drug use; scientificevidencefurther indicating drug use which was proximate in time to the chargeduse is,at the very least, relevant to corroborate his confession).
UnitedStates v. Grant, 56 MJ 410 (military judge did notabusehis discretion by admitting a drug screen report on the issue ofwhether or notappellant’s confession was worthy of belief where he expressly statedthat hewas admitting the report for the limited purpose of corroborating theconfessionand instructed the members accordingly; the fact that there areadditionalfoundational requirements for admitting a urinalysis offered on thesubstantiveissue of wrongful use does not change the law of evidence pertaining totheadmissibility of a business record offered to corroborate aconfession).
(although a chain of custody is a foundational prerequisite foradmittingreal or tangible evidence on a substantive issue in the case, a drugscreen,introduced to corroborate appellant’s confession, was not offered toshow theactual state of the urine sample or commission of a substantiveoffense;appellant’s confession was the evidence offered on his wrongful useduring theperiod charged).
(a confession must be corroborated by independent evidencejustifyingsufficiently an inference of truth of the essential facts admitted inorder toensure that the confession is not false).
(the quantum of evidence needed to corroborate a confession may beveryslight).
(the drug screen report as corroboration evidence indicated theactualpresence of the substance in appellant’s system in late November, andraised aninference that appellant had recently used the very substance he hadconfessedto using over the previous five or six weeks).
2001
UnitedStates v. Baldwin, 54 MJ 464 (the corroborationrequirement for admission of a confession at court-martial does notnecessitateindependent evidence of all the elements of an offense or even thecorpusdelicti of the confessed offense; rather, the corroboration must raiseonly ininference of truth as to the essential facts admitted, and thereliability ofthe essential facts need only be established by a preponderance of theevidence.
(where the military judge made detailed findings of fact, thosefindingsadequately corroborated the facts contained in appellant’s confessionwhere thejudge’s findings had direct corroborative value as to two specificfacts inappellant’s confession and raised an inference of truth as to theessentialfacts admitted in the confession).2017 (October Term)
United States v. Condon, 77 M.J. 244 (the fact that the accused during official questioning and in exercise of rights under the Fifth Amendment to the United States Constitution or Article 31 requested counsel is not admissible against the accused).
2014 (September Term)
United States v. Piren, 74 M.J. 24 (an accused is not required to testify in his defense and his failure to do so may not be the basis for any inference against him).
2012 (September Term)
United States v. Hutchins, 72 M.J. 294 (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).
2008 (September Term)
United States v. Delarosa, 67 M.J. 318 (if a suspect provides an ambiguous statement regarding invocation of rights after Miranda warnings have been given, law enforcement officials are not obligated to cease interrogation).
(if a suspect’s statementregarding invocationof Miranda rights is ambiguous, law enforcement officials mayattempt toclarify the issue of rights invocation, but they are not required to doso; theymay continue questioning unless the suspect unambiguously invokes hisrights,regardless of whether law enforcement officials have endeavored toclarify anyambiguity).
(if a suspect unambiguouslyinvokes his or herrights under Miranda, law enforcement officials may not conductanyfurther questioning of the suspect about the offense unless they do soin amanner demonstrating that they have scrupulously honored the suspect’sinvocation of rights).
(in assessing whether a personprovided anunambiguous invocation of Miranda rights, the Supreme Court hasstatedthat the invocation must be sufficiently clear that a reasonable policeofficerin the circ*mstances would understand the statement to be a request foranattorney or to remain silent).
(after answering “YES” toother Mirandarights-waiver questions, appellant did not unambiguously invoke hisright toremain silent prior to questioning by civilian law enforcement officersconcerning the death of his infant son when he inserted the word “NO”next tothe question about whether he waived his rights and desired to make astatement, where appellant stated several times that he wanted to talkto theofficers about his son’s death, where he indicated, when the officersattemptedto clarify his “NO” response, that he would make a statement if acommandrepresentative were present, and where he then initiated a conversationcontaining a potentially exculpatory statement).
2007United States v. Moran, 65 M.J. 178 (MRE 301(f)(3)provides that the fact that the accused during official questioning andin exercise of rights under the Constitution requested counsel isinadmissible against the accused).
(in the American system ofjustice, the exercise of the right to counsel is proof of neither guiltnor innocence).
2006
2004
UnitedStates v. Seay, 60 MJ 73 (appellant’s numerousreferences tocounsel did not affect appellant’s confession because appellant did notmake anunambiguous request for counsel, and appellant’s references to counseldid notoccur during the custodial interrogation).
UnitedStates v. Traum, 60 MJ 226 (the right to remain silentprotects against any disclosures that the witness reasonably believescould beused in a criminal prosecution or could lead to other evidence thatmight be soused; application of the privilege is notlimited topersons in custody or charged with a crime; it may also be asserted byasuspect who is questioned during the investigation of a crime).
(thisCourt has established that if an individualindicates in anymanner, at any time prior to or during questioning, that he wishes toremainsilent, the interrogation must cease; in addition, the MCM providesthat if aperson chooses to exercise the privilege against self-incrimination,questioning must cease immediately).
(although no particular words or actions arerequired toexercise one’s Fifth Amendment right to silence, this Court has heldthat itsinvocation must be unequivocal before all questioning must stop).
(theaccused’s response that she did notwant to talk about thedetails of the night that her infant daughter died didnot unequivocally invoke her right to remain silent as this responsedid notforeclose the possibility that she was willing to take a polygraph anddiscussother aspects of the investigation, such as the child’s medical historyor themanner in which she cared for her child).
2002
UnitedStates v. Gilley, 56 MJ 113 (the government maynot use adefendant’s assertion of his Fifth Amendment rights as substantiveevidenceagainst him, and under Mil.R.Evid. 301(f)(3) this prohibition appliesequallyto both comments on the accused’s right to remain silent and commentson theaccused’s right to counsel, both of which flow from the FifthAmendment).
(violations of the prohibition against commenting on the accused’sassertionof his Fifth Amendment rights are subject to harmless error review).
(the government is permitted to make "a fair response" to claimsmade by the defense, even when a Firth Amendment right is at stake).
(where prosecutorial comments are a fair response to a claim made bythedefendant or his counsel, there is no violation of the Fifth Amendmentprivilege against self-incrimination).
(reference to appellant’s request for counsel may have fairlyrebutted thedefense theory concerning pretrial statement and was not used assubstantiveevidence of guilt against appellant; even if it was error to allow thetestimony, given the context in which the issue arose here, court foundnomaterial prejudice to appellant’s substantial rights and, thus, noplainerror).
(because appellant failed to object to testimony that he did notreadwritten statement and requested counsel, and since the testimonycontradictedappellant’s claim that he read the statement but refused to sign itbecause itwas full of lies, court found that defense counsel opened the door tothe useof this testimony for that limited purpose).
Motionsto suppress:
2021 (October Term)
United States v. Nelson, 82 M.J. 251 (an appellate court reviews a military judge’s ruling on a motion to suppress for an abuse of discretion and considers the evidence in the light most favorable to the party that prevailed at trial; a military judge abuses his discretion if ‘his findings of fact are clearly erroneous or his conclusions of law are incorrect).
(in this case, the military judge abuse did not abuse his discretion in denying Appellant’s motion to suppress and ruling that appellant voluntarily entered his cell phone passcode where (1) appellant, who was 25-years-old, had been a Marine for four years, and was articulate with the ability to communicate, was not somehow peculiarly susceptible to coercion, (2) during his initial interview with law enforcement, not only did appellant technically waive his Miranda/Article 31, UCMJ, rights, he did so forthrightly and unambiguously and demonstrated his willingness to answer questions, and he repeatedly demonstrated his recognition that he could decline to provide the passcode to his phone, (3) although appellant cites the fact that he was asked and refused five times to provide the investigator with the passcode in his initial interview, he does not provide any basis for a conclusion that this initial interview was coercive -- he did not invoke his right to counsel and did not seek to depart from the interview; (4) during appellant’s second interview with law enforcement, the investigator’s tone and demeanor remained professional at all times, the encounter lasted only minutes, the investigator did not engage in threats, abuse, or coercion in order to get appellant to enter the passcode, and the investigator was not obligated to read appellant his rights again; (5) when appellant stated that he had no choice but to enter the passcode, he did not wait for a response by the investigator before unlocking his phone, and the investigator was under no obligation to correct appellant’s misimpression, and (6) by informing appellant that he had obtained a search authorization, the investigator did not overbear appellant’s will where he did, in fact, have a search authorization).
2012 (September Term)
United States v. Mott, 72 M.J. 319 (on a motion to suppress an accused’s statements to investigators, alleging that the statements were involuntary because he was mentally ill at the time, a military judge abused his discretion by admitting the accused’s statement without first contextually analyzing whether he could and did knowingly and intelligently waive his right to counsel, and instead focusing solely on the question of voluntariness; the military judge also erred when he addressed whether an accused’s waiver was knowing and intelligent solely as a conclusory finding of fact, rather than as a conclusion of law).
2001
UnitedStates v. Simpson, 54 MJ 281 (denial of a motiontosuppress a confession is reviewed under an abuse of discretionstandard, andthe trial judge’s findings of fact are accepted unless they are clearlyerroneous).
Rule of completeness:
2008 (SeptemberTerm)
UnitedStates v. Wuterich, 67 M.J. 32 (the rule ofcompleteness is a rule thatbenefits the party opposing admission of evidence, not the partyoffering theevidence).
2001UnitedStates v. Goldwire, 55 MJ 139 (Mil. R. Evid.304(h)(2)allows the defense to complete an admission or confession whether it isoral orin writing, and provides the defense the option of doing so using Mil.R. Evid106 or 304(h)(2)).
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).
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).
(because the circ*mstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege).
(once a suspect in custody has expressed his desire to deal with the police only through counsel, he is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication).
(in every case involving Edwards (451 US 477 (1981)), the courts must determine whether the suspect was in custody when he requested counsel and when he later made the statements he seeks to suppress).
(Edwards (451 US 477 (1981)) clearly applies to the military).
(under the circ*mstances presented in this case, the accused’s Fifth Amendment right against self-incrimination, as protected by Miranda (384 US 436 (1966)), and Edwards (451 US 477 (1981)), was violated by government agents who asked him, in the absence of counsel, to unlock his iPhone when the device had been seized pursuant to a valid search and seizure authorization; at the time of the questioning, the accused was in custody and had previously invoked his right to counsel; when the agents asked him to enter his passcode, they were not merely requesting consent to search, but rather were asking him to provide privileged incriminating information; as such, pursuant to the plain language of MRE 305(c)(2), the contents of the phone had to be suppressed).
(two discrete inquiries are essential to the determination of whether an accused is in custody for the purposes of Miranda (384 US 436 (1966)), and Edwards (451 US 477 (1981)): first, what were the circ*mstances surrounding the interrogation; and second, given those circ*mstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave; the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest; courts evaluate: (1) whether the person appeared for questioning voluntarily; (2) the location and atmosphere of the place in which questioning occurred; (3) the length of the questioning; (4) the number of law enforcement officers present at the scene; and (5) the degree of physical restraint placed upon the suspect).
(interrogation of a suspect includes not only express questioning, but also any words or actions on the part of the police, other than those normally attendant to arrest and custody, that the police should know are reasonably likely to elicit an incriminating response from the suspect).
(government agents asking the accused to state his passcode involved more than a mere consent to search; they asked the accused to provide the government with the passcode itself, which is incriminating information in the Fifth Amendment sense, and thus privileged; the privilege not only extends to answers that would in themselves support a conviction but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute; without the benefit of counsel that he had requested, subjecting the accused to a custodial interrogation endangered his Fifth Amendment privilege against self-incrimination and violated the protective rule created in Edwards (451 US 477 (1981)); because Edwards forbids interrogation following the invocation of the Miranda (384 US 436 (1966)) right to counsel, not just interrogation that succeeds, it follows that those who seek Edwards protection do not need to establish that the interrogation produced or sought a testimonial statement in order to establish a violation; rather, only interrogation itself must be established, and the accused has demonstrated that entry of his passcode was an incriminating response that the government should have known they were reasonably likely to elicit; once an Edwards violation has been established, whether the incriminating response or derivative evidence will be suppressed is a question of remedy, not wrong).
(under the plain language of the MRE 305(c)(2), any evidence derived from a violation of Edwards (451 US 477 (1981)) must be suppressed: if a person suspected of an offense and subjected to custodial interrogation requests counsel, any statement made in the interrogation after such request, or evidence derived from the interrogation after such request, is inadmissible against the accused unless counsel was present for the interrogation; and the MREs expressly provide that an individual may claim the most favorable privilege provided by the Fifth Amendment to the United States Constitution, Article 31, or these rules).
(although the contents of the accused’s iPhone were inadmissible due to the Edwards (451 US 477 (1981)) violation, the phone itself should not have been suppressed because it was seized pursuant to lawful authorization prior to the Edwards violation, or any other alleged Fifth Amendment violation; the phone did not constitute evidence derived from the illicit interrogation, and the possibility that a court-martial panel could impermissibly review the phone’s contents could be overcome with an instruction forbidding such use).
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).
United States v. Piren, 74 M.J. 24 (when an accused takes the stand, the privilege against self-incrimination is waived).
2013 (September Term)
United States v. Jones, 73 M.J. 357 (the Article 31(b) warning requirement provides members of the armed forces with statutory assurance that the standard military requirement for a full and complete response to a superior’s inquiry does not apply in a situation when the privilege against self-incrimination may be invoked).
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).
2008 (SeptemberTerm)UnitedStates v. Paige, 67 M.J. 442 (members of thearmed forces, like theircivilian counterparts, may not be compelled to incriminate themselvesin acriminal case).(a military accused has theright not totestify, and trial counsel may not comment directly, indirectly, or byinnuendo, on the fact that an accused did not testify in his defense).
(the privilege againstself-incriminationprovides an accused servicemember with the right not to testify at hiscourt-martial and precludes comment by trial counsel on his silence).
(a constitutional violationoccurs only ifeither the defendant alone has the information to contradict thegovernmentevidence referred to or the members naturally and necessarily wouldinterpretthe summation as comment on the failure of the accused to testify).
(thediscussion to RCM 919 suggests that trial counsel may notargue that the prosecution’s evidence is unrebutted if the onlyrebuttal couldcome from the accused).
1999
UnitedStates v. Sanchez, 51 MJ 165 (conviction for failing toreportserious offense did not violate appellant’s Fifth Amendment rightagainstself-incrimination where appellant could have reported the offenseimmediatelywithout incurring criminal liability).
(appellant’s unconditional guilty plea waived claim that convictionforfailing to report serious offense violated appellant’s Fifth Amendmentrightagainst self-incrimination).
UnitedStates v. Gray, 51 MJ 1 (statements made by appellantpursuantto a guilty plea in state court were not admitted at court-martial inviolationof appellant’s Fifth Amendment right against self-incrimination asappellanthad received rights warnings, invoked right to counsel, consulted withcounsel,and agreed to provide information to both the police and to statecourt, anddid so, in the presence of counsel).
SubsequentConfessions:
2007
United States v. Gardinier, 65 M.J. 60 (where an earlier statement was involuntary only because the accused had not been properly warned of his Article 31(b), UCMJ, rights, the voluntariness of the second statement is determined by the totality of the circ*mstances; an earlier unwarned statement is a factor in this total picture, but it does not presumptively taint the subsequent statement; if a cleansing warning has been given -- where the accused is advised that a previous statement cannot be used against him -– that statement should be taken into consideration; if a cleansing statement is not given, however, its absence is not fatal to a finding of voluntariness).
(after the accused received aproper Article 31(b) rights advisem*nt, his decision to make astatement to a military CID agent despite an earlier unwarned statementwas made voluntarily, where the agent told the accused that anotherstatement was needed because he may not have been properly warned ofhis rights before the earlier statement, the accused signed the writtenrights advisem*nt indicating that he waived his rights before givinghis subsequent statement, there was no suggestion that either statementwas given at a coercive event, and the accused’s relative age andmaturity level did not raise voluntariness concerns).
2006
(the absence of a cleansingwarning before a secondconfessionafter an earlier involuntary confession is not fatal to a finding thatthesecond confession was voluntary).
(in this case, the accused’ssubsequent statements to an OSI agent after he gave an unwarnedstatement to a Family Advocacy treatment manager were voluntary andadmissibleeven though the agent did not give him a cleansing warning that hispriorstatement could not be used against him, where the interview with theagentoccurred almost a month and a half after the initial interview with thetreatmentmanager, giving the accused a substantial amount of timeto weighthe pros and cons of continuing to talk with military authorities,where the accused was amature,experienced servicemember - a twenty-eight-year-old staff sergeant withalmostten years of military service, and where the conditions of theaccused’s secondinterview were not coercive or inhumane).
UnitedStates v. Seay, 60 MJ 73 (we hold that evenassuming appellant’s FifthAmendmentrights, Article 31(b), and the MREs were violated by the authorities’continuedinterrogation of appellant despite his invocation of the right tosilenceduring the first questioning, the failure to provide appellantappropriaterights warnings during the pretextual phone calls, and the failure toterminatethe pretextual phone calls, appellant’s eventual confession wasuntainted).
(immediatelyprior to appellant’s confession, he was reminded again that he couldremainsilent and could consult with a lawyer, and was carefully given a fulland fairopportunity to exercise these options; appellant waived those rightsanew, andin so doing created a clean slate for his confession; becauseappellant’sconfession was untainted by prior events, the military judge did notabuse hisdiscretion in admitting the confession into evidence at trial).
2002
UnitedStates v. Benner, 57 MJ 210 (confession thatfollows anearlier confession obtained due to actual coercion, duress, or unlawfulinducement is presumptively tainted).
(a confession taken in compliance with Article 31(b) and Mil.R.Evid.305that follows an earlier unwarned confession obtained in violation ofArticle31(b) and Mil.R.Evid. 305 is not presumptively tainted, but isadmissible ifthe subsequent confession is determined to be voluntary by the totalityof thecirc*mstances).
(in determining whether a subsequent confession is voluntary underthetotality of the circ*mstances test, some of the relevant circ*mstancesinclude:(1) the earlier, unwarned statement, but it does not presumptivelytaint thesubsequent confession; (2) the fact that the subsequent confession wasprecededby adequate warnings; and (3) while a cleansing warning is not aprerequisiteto admissibility, an earlier unwarned statement and the lack of acleansingwarning before the subsequent statement are also part of the totalityof thecirc*mstances).
(where actual coercion, duress, or unlawful inducement was notinvolved inan initial unlawful confession, the totality of the circ*mstances isreviewed denovo to determine, as a matter of law, whether appellant’ssubsequentconfession meets the following test: Is the confession theproduct of anessentially free and unconstrained choice by its maker? If it is,if hehas willed to confess, it may be used against him. If it is not,if hiswill has been overborne and his capacity for self-determinationcriticallyimpaired, the use of his confession offends due process).
(although CID advised appellant of his rights prior to a subsequentconfession, the chaplain had made it clear that if he invoked hisrights, thechaplain would reveal his confession; such facts contribute to aholding thatthe Government did not carry its burden of establishing thatappellant’sconfession was voluntary).2021 (October Term)
United States v. Nelson, 82 M.J. 251 (the voluntariness of a confession is a question of law that an appellate court reviews de novo).
(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 circ*mstances by applying a two-part test, looking to both the personal characteristics of the accused as well as the circ*mstances 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 circ*mstances 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).
(in this case, the military judge abuse did not abuse his discretion in denying Appellant’s motion to suppress and ruling that appellant voluntarily entered his cell phone passcode where (1) appellant, who was 25-years-old, had been a Marine for four years, and was articulate with the ability to communicate, was not somehow peculiarly susceptible to coercion, (2) during his initial interview with law enforcement, not only did appellant technically waive his Miranda/Article 31, UCMJ, rights, he did so forthrightly and unambiguously and demonstrated his willingness to answer questions, and he repeatedly demonstrated his recognition that he could decline to provide the passcode to his phone, (3) although appellant cites the fact that he was asked and refused five times to provide the investigator with the passcode in his initial interview, he does not provide any basis for a conclusion that this initial interview was coercive -- he did not invoke his right to counsel and did not seek to depart from the interview; (4) during appellant’s second interview with law enforcement, the investigator’s tone and demeanor remained professional at all times, the encounter lasted only minutes, the investigator did not engage in threats, abuse, or coercion in order to get appellant to enter the passcode, and the investigator was not obligated to read appellant his rights again; (5) when appellant stated that he had no choice but to enter the passcode, he did not wait for a response by the investigator before unlocking his phone, and the investigator was under no obligation to correct appellant’s misimpression, and (6) by informing appellant that he had obtained a search authorization, the investigator did not overbear appellant’s will where he did, in fact, have a search authorization).
2018 (October Term)
United States v. Lewis, 78 M.J. 447 (MRE 304(a) provides that an involuntary statement from the accused, or any evidence derived therefrom, is inadmissible at trial; a confession is involuntary if it was obtained in violation of the self-incrimination privilege or Due Process Clause of the Fifth Amendment to the United States Constitution, Article 31, or through the use of coercion, unlawful influence, or unlawful inducement).
(the prosecution bears the burden of establishing by a preponderance of the evidence that the confession was voluntary; voluntariness turns on whether an accused’s will has been overborne; the necessary inquiry is whether the confession is the product of an essentially free and unconstrained choice by its maker).
(where a confession is obtained at a lawful interrogation that comes after an earlier interrogation in which a confession was obtained due to actual coercion, duress, or inducement, the subsequent confession is presumptively tainted as the product of the earlier one).
(where the earlier confession was involuntary only because the suspect had not been properly warned of his panoply of rights to silence and to counsel, the voluntariness of the second confession is determined by the totality of the circ*mstances).
(in determining whether an accused’s will was overborne in a particular case, the totality of all the surrounding circ*mstances are considered, to include both the characteristics of the accused and the details of the interrogation; some of the factors taken into account include the youth of the accused, his lack of education, or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, the use of physical punishment such as the deprivation of food or sleep, an earlier violation of Article 31(b), UCMJ, whether the admission was made as a result of the questioner’s using earlier, unlawful interrogations, and the presence of a cleansing warning, although the absence of such is not fatal to a finding of voluntariness; the fact that a suspect chooses to speak after being informed of his rights, is of course, highly probative).
(mental illness does not make a statement involuntary per se).
(in this case, where an initial confession was involuntary only because the accused had not been properly warned of his Article 31(b), UCMJ, rights to silence and to counsel, the military judge clearly erred in finding that a later, warned confession was involuntary where the judge presumed that that accused was suffering from a psychological adjustment disorder that affected his mood and ability to deal with additional stressors at the time of his later confession, when in fact, there was no evidence that the accused suffered from the disorder at the time of that confession, and this erroneous finding played no small role in his ultimate determination of voluntariness; even assuming that the accused had suffered from adjustment disorder at the time of his later confession, mental illness does not make a statement involuntary per se; here, the record did not reflect that the accused’s adjustment disorder negatively affected his capacity for free choice or that government overreaching occurred at the time of his later confession, and on the whole, the accused’s characteristics favored a finding of voluntariness; furthermore, the later confession was voluntary considering all the facts and circ*mstances, where (1) the accused chose to speak after being informed of his rights, (2) the interrogator was not one who had interrogated the accused previously, (3) the questioning was not particularly lengthy, (4) there were no threats, lies, or physical abuse, and the accused was not denied any material comforts, (5) the accused’s confession came almost two full months after his first unwarned interrogation, during which time he was not confined, and (6) the accused had been warned of his right to counsel during the previous interrogations and had several weeks between interviews to seek legal counsel or decide to decline further interviews and he did not do so; because the military judge clearly erred in his factfinding and rationale, and because the accused’s confession was voluntary under the totality of the circ*mstances, the military judge abused his discretion in suppressing the later confession).
2012 (September Term)
United States v. Mott, 72 M.J. 319 (mental illness does not make a statement involuntary per se; voluntariness depends on the absence of police overreaching; regardless of the accused’s mental state, a confession will not be suppressed for involuntariness absent coercive police activity).
2008 (September Term)
UnitedStates v. Chatfield, 67 M.J. 432 (while Mirandawarningsprovide procedural safeguards to secure the right againstself-incriminationduring custodial interrogations, the Due Process Clauses of the FifthandFourteenth Amendments protect an accused generally against theadmission of anyinvoluntary statements, whether made in or out of custody).
(when introducing aconfession,the government has the burden of showing the confession is the productof anessentially free and unconstrained choice by its maker).
(based on the totality of thecirc*mstances, appellant’s statements to a civilian police officer werevoluntary, where appellant was an experienced Naval officer, where hewasneither ordered by military officers to go to the police station or togive astatement once there, where the civilian police officer did not use anyoverreaching tactics and was not accusatory, and where the interviewwith thecivilian police officer was short and undertaken with the expectationthatappellant would be free to have dinner with other military officersafter itwas over).
UnitedStates v. Delarosa, 67 M.J. 318 (based on thetotality of the circ*mstances,appellant’s confession was voluntarily, where he was advised of hisFifthAmendment rights from a standardized legal rights advisem*nt form onthreeseparate occasions during the course of his interrogation, but neverunambiguously invoked his right to counsel or his right to remainsilent, wherethe atmosphere of the interrogation was not laced with coercion orintimidationand the detective’s tone was never verbally abusive or threatening, andwhereappellant acknowledged that no one had threatened him into making astatementand that it was a product of his own free will).
2008 (Transition)
UnitedStates v. Freeman, 65 M.J. 451 (a confession isinvoluntary, and thusinadmissible, if it was obtained in violation of the self-incriminationprivilege or due process clause of the Fifth Amendment to theConstitution ofthe United States, Article 31, or through the use of coercion, unlawfulinfluence, or unlawful inducement).
(a court examines the totalityof thesurrounding circ*mstances to determine whether the confession is theproduct ofan essentially free and unconstrained choice by its maker; indeterminingwhether an accused’s will was overborne in a particular case, the courtassesses both the characteristics of the accused and the details of theinterrogation).
(promisesare considered only a factor in thetotality of the circ*mstances equation to determine whether aconfession isvoluntary; they are not of themselves determinative of involuntariness;similarly,lies, threats, or inducements are not determinative either; after all,as the Mirandarules were issued to counter-balance the psychological ploys used bypoliceofficials to obtain confessions, the presence of those ploys can hardlybeconsidered to per se result in an involuntary confession).
(asthe application of the totality ofcirc*mstances standard rests with the particular facts of each case, athreatto turn an accused over to civilian law enforcement is but one factorto weighin deciding the voluntariness of a confession; a court does not examineeach ofthe facts separately but rather in conjunction with all the other factsin thecase).
(in this case, under the totality of thecirc*mstances, appellant’s confession was voluntary, where thecharacteristicsof appellant and the details of the interrogation favored a finding ofvoluntariness; despite the fact that interrogators lied to appellantabout theevidence they had and threatened to turn his case over to civilianauthoritieswhere he would face stiffer punishment, appellant was advised of hisrights tocounsel and to remain silent and waived those rights, he nevercomplained aboutthe process, never asked for an attorney, never asked to stop theinterview orleave, or in any other way indicated that he felt coerced or pressuredintomaking a statement, he had several breaks during the interrogation inwhich heleft the interrogation room, went outside, and smoked, he was providedwaterand declined offers for other food and drink, he was neither physicallyabusednor threatened with such abuse, and he prepared a written statement byhimself,outside the presence of any investigator; under the totality of thesecirc*mstances, appellant’s confession was voluntary).
2007
United States v. Gardinier, 65 M.J. 60 (where an earlierstatement was involuntary only because the accused had not beenproperly warned of his Article 31(b), UCMJ, rights, the voluntarinessof the second statement is determined by the totality of thecirc*mstances; an earlier unwarned statement is a factor in this totalpicture, but it does not presumptively taint the subsequent statement;if a cleansing warning has been given -- where the accused is advisedthat a previous statement cannot be used against him -- that statementshould be taken into consideration; if a cleansing statement is notgiven, however, its absence is not fatal to a finding of voluntariness).
2006
(MRE 305(e)provides for two situations wherecounsel must be present during an interrogation, absent waiver: (1)custodialinterrogations and (2) post-preferral interrogation).
United Statesv. Brisbane,63 M.J. 106 (in determining whether an accused’s confession wasvoluntary, a courtmust assess the totality of all the surrounding circ*mstances -- boththecharacteristics of the accused and the details of the interrogation;some ofthe factors taken into account have included the youth of the accused,his lackof education, or his low intelligence, the lack of any advice to theaccused ofhis constitutional right, the length of detention, the repeated andprolongednature of the questioning, and the use of physical punishment such asthedeprivation of food or sleep).
2005
UnitedStates v. Bresnahan, 62 M.J. 137 (an accused’s confession must bevoluntaryto be admitted into evidence).
(the accused’s confession to adetectivethat he might have shaken his infant son to try to stop his crying wasvoluntary under the totality of the circ*mstances, even though thedetectivepressured the accused by telling him that the doctors needed to knowexactlywhat happened to his son so they could save his life; although thedetectivehad the intent of securing a confession by exploiting the accused’semotionalties to his son, her statement was accurate, and she was notconfrontational orintimidating; in addition, at the time, the accused had served overfive yearsin the Army, did not suffer from any mental deficiency, and was notdetained,questioned for a prolonged amount of time, or held in isolation for anyamountof time; finally, regardless of whether the accused actually believedthedoctors would not help his son unless he confessed, the detective’sstatementswould not provide a motive for him to lie; if the accused did not shakehisson, then telling the detective that he did shake him would not helpthedoctors determine how to treat the baby appropriately).
2004
UnitedStates v. Cuento, 60 MJ 106 (the necessary inquiry indetermining the voluntariness of a confession is whether the confessionis theproduct of an essentially free and unconstrained choice by its maker;if,instead, the maker’s will was overborne and his capacity forself-determinationwas critically impaired, use of his confession would offend dueprocess).
(aconfession isnot automatically inadmissible, even though it was made after anotherconfession which was clearly involuntary; the prosecution must rebutthepresumption that the later confession was the result of the sameinfluencewhich led to the prior confession).
(wherea confession is obtained at a lawful interrogation that comes after anearlierinterrogation in which a confession was obtained due to actualcoercion,duress, or inducement, the subsequent confession is presumptivelytainted as aproduct of the earlier one; on the other hand, where the earlierconfession was"involuntary" only because the suspect had not been properly warnedof his panoply of rights to silence and to counsel, the voluntarinessof thesecond confession is determined by the totality of the circ*mstances;theearlier, unwarned statement is a factor in this total picture, but itdoes notpresumptively taint the subsequent confession).
(whena priorstatementis actually coerced, the time that passes betweenconfessions,the change in place of interrogations, and the change in identity oftheinterrogators all bear on whether that coercion has carried over intothesecond confession; only those statements that are “actually coerced”requireapplication of the more stringent test generally described in MRE304(b)(3), asopposed to a showing of voluntariness by totality of the circ*mstances).
(whileaso-called “cleansing statement” is a factor to consider in evaluatingthevoluntariness of a confession made following a prior, unwarnedstatement, thisCourt has held that where there are successive statements, it is not aprecondition to the admission of a properly obtained statement, thattheaccused be informed that a previous statement cannot be used againsthim;however, if there has been an earlier unwarned statement, the absenceof acleansing warning before the subsequent statement is one of thecirc*mstancesto be considered in determining voluntariness).
(evidencethatwas obtained as a result of an involuntary statement may be used whentheevidence would have been obtained even if the involuntary statement hadnotbeen made; even evidence challenged as “derivative” from an involuntarystatement is admissible if the military judge finds by a preponderanceof theevidence that it was not obtained by use of the statement, or that theevidencewould have been obtained even if the statement had not beenmade).
(indeterminingwhether appellant’s subsequent NCIS statement was voluntary, the Courtassumed,arguendo, that his earlier statement was produced by the coerciveeffect of theprerequisites placed on appellant’s reunification with his family bytheCalifornia Child Protective Service; however, under the circ*mstancesof thiscase, particularly the intervening events between the first and secondstatements, the Government had carried its burden of demonstrating thatthefirst statement did not taint the second statement, and that the secondwasvoluntary; these circ*mstances included the following factors: (1)appellantwas invited, not ordered to NCIS, and he arrived without commandescort, (2)appellant was not in custody, (3) appellant made his second statementsevendays after the first, with significant time for cool reflection andconsultation with an attorney, (4) appellant was told that he was atNCISvoluntarily and could leave at any time, (5) appellant was advised ofhisrights before his second statement, and he did not ask for an attorneyor indicatethat he wanted to leave or stop answering questions, (6) no mention wasmade bythe NCIS agents to appellant about his prior statement, and no mentionwas madeof the Child Protective Service prerequisites, and (7) the agents didnot makeany promises, inducements, or threats).
2002
UnitedStates v. Benner, 57 MJ 210 (we review de novoamilitary judge’s determination that a confession is voluntary).
(appellant’s confession to CID was involuntary where appellant wentto thechaplain for help but instead he was advised that Army Regulations andtheFamily Advocacy Center rules mandated that the chaplain “turn him in”andreveal his confession; faced with this Hobson’s choice of confessing toCID orhaving the chaplain reveal his confession to CID, he had little or nochoicebut to confess).
(appellant’s will was overborne, his capacity for self-determinationwascritically impaired, and the use of his confession offends due processwhereappellant was seeking clerical help, but instead of providingconfidentialcounseling, the chaplain informed appellant that he was obliged toreportappellant’s action and thus, unknown to the chaplain, breach thecommunicationsto clergy privilege).
(although CID advised appellant of his rights prior to a subsequentconfession, the chaplain had made it clear that if he invoked hisrights, thechaplain would reveal his confession; such facts contribute to aholding thatthe Government did not carry its burden of establishing thatappellant’sconfession was voluntary).
UnitedStates v. Ellis, 57 MJ 375 (the voluntariness of aconfession is a question of law to be reviewed de novo byexamining thetotality of all the surrounding circ*mstances including both thecharacteristics of the accused and the details of the interrogation).
(the totality of circ*mstances considered in determining thevoluntarinessof a confession is not a cold and sterile list of isolated facts - thetotalityof the circ*mstances include the condition of the accused, his health,age,education, and intelligence; the character of the detention, includingtheconditions of the questioning and rights warning; and the manner of theinterrogation, including the length of the interrogation and the use offorce,threats, promises, or deceptions).
(the soundness of appellant’s physical and psychological characterat thetime of interrogation are examined as part of the totality of thecirc*mstancesto determine whether the statements were voluntary).
(while the detectives’ advice to appellant concerning removingappellant’sremaining children from the home may have contributed to hisconfession, themere existence of a causal connection does not transform appellant’sotherwisevoluntary confession into an involuntary one; this consequence ofappellant’scriminal conduct was unpleasant, but the law enforcement officers’advice was anaccurate picture of what would happen in similar cases).
(the factual question whether a confession is reliable is for themembers ofa court-martial to decide; military judge finds a confession voluntaryas amatter of law and admits it, members determine its voluntariness andreliability as a matter of fact).
1999
UnitedStates v. Griffin, 50 MJ 278 (in the face of anappropriatemotion or objection, the prosecution bears the burden of establishingtheadmissibility of a confession, and the military judge must find by apreponderance of the evidence that the statement was voluntarily made,considering the totality of the circ*mstances, including both thecharacteristicsof the accused and the details of the interrogation).
UnitedStates v. Ford, 51 MJ 445 (the prosecution has theburden ofestablishing the admissibility of a confession, establishing by apreponderanceof the evidence that the confession was voluntary).
(in spite of unwarned earlier questioning, a confession given laterwasvoluntary where: (1) statements made during initial unwarnedinterviewwere not the product of actual coercion; (2) proper warnings precededsecondinterview; (3) other then the inherent coercive atmosphere of a stationhouse,appellant was not deprived of personal comforts during secondinterrogation;(4) although no cleansing warning was given, appellant appeared tounderstandhis rights; and, (5) there was no reference to earlier unwarnedstatements).
UnitedStates v. Henderson, 52 MJ 14(where appellant couchedhis admissionsin an exculpatory story of self-defense to military authorities inhopes ofavoiding problems with the German government, there was no indicationthatappellant’s will was overborne and his inculpatory admissions wereinvoluntary).
2021 (October Term)
United States v. Nelson, 82 M.J. 251 (the general rule is that if Miranda/Article 31 warnings are given properly the first time and there is a continuance of the interrogation, separate warnings are not needed; this principle holds true even if the interrogation is continued one day later).
2013 (September Term)
United States v. Jones, 73 M.J. 357 (the Article 31(b) warning requirement provides members of the armed forces with statutory assurance that the standard military requirement for a full and complete response to a superior’s inquiry does not apply in a situation when the privilege against self-incrimination may be invoked; under Article 31(b), UCMJ, no person subject to the UCMJ may interrogate or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial).
(under Article 31(b), UCMJ, warnings are required when (1) a person subject to the UCMJ, to include “a knowing agent,” such as a civilian law enforcement agent working for military criminal investigatory services, (2) interrogates or requests any statement, (3) from an accused or person suspected of an offense, and (4) the statements regard the offense of which the person questioned is accused or suspected).
(under Article 31(b)’s second requirement, rights warnings are required if the person conducting the questioning is participating in an official law enforcement or disciplinary investigation or inquiry, as opposed to having a personal motivation for the inquiry; this is determined by assessing all the facts and circ*mstances at the time of the interview to determine whether the military questioner was acting or could reasonably be considered to be acting in an official law-enforcement or disciplinary capacity; this second determination is judged by reference to a reasonable man in the suspect’s position).
(on its face, the objective standard of Article 31(b)’s second requirement is potentially problematic in relation to the use of undercover officers or informants who clearly act in an official capacity; judicial discretion, however, indicates a necessity for denying Article 31(b)’s application to a situation not considered by its framers, and wholly unrelated to the reasons for its creation; because undercover officials and informants do not usually place the accused in a position where a reasonable person in the accused’s position would feel compelled to reply to questions, this same logic dictates that Article 31(b), UCMJ, would not apply in those situations; this conclusion is consistent with the Supreme Court’s undercover agent exception in the Miranda v. Arizona (384 US 436 (1966)) context).
(US v. Duga (10 MJ 206 (CMA 1981)) purported to set forth a two-part test that required Article 31, UCMJ, warnings only where the person questioning was acting in an official capacity and the person questioned perceived that the inquiry involved more than a casual conversation; the CAAF now expressly rejects the second, subjective, prong of the Duga test, which has been eroded by more recent cases articulating an objective test).
(in this case, the military judge did not abuse his discretion in admitting appellant’s statement about a recent burglary to an infantryman when he concluded that the infantryman was not acting and could not reasonably be considered by appellant to be acting in an official law enforcement or disciplinary capacity when he questioned appellant; as a result, Article 31(b), UCMJ, warnings were not required, and appellant’s statement was properly admitted; although at the time of questioning, the infantryman was also serving as a military police augmentee, was involved in the investigation of the burglary, and immediately reported the results of his conversation with appellant to his chain of command, he had a personal motivation for questioning appellant based on a prior interaction, he did not exercise a disciplinary role with respect to appellant, he had limited law enforcement authority and responsibilities as an MP augmentee, he was not permitted to perform MP duties without his MP partner present or any MP functions when he was off-duty, he was not authorized to fill out rights waiver forms, take sworn statements, or question suspects, he was treated by the MPs as a registered source, signifying that he was not acting as an official MP augmentee at the time of the questioning, and he questioned appellant outside the presence of his MP partner and while he was off-duty; furthermore, a reasonable person in appellant’s position could not have considered the infantryman to be acting in an official law enforcement or disciplinary capacity where appellant was an actual MP who seemingly understood the limited authorities and responsibilities of an MP augmentee, where at the time of the questioning, the infantryman was junior in rank to appellant, where appellant had earlier asked the infantryman to join him in committing the burglary, and where appellant, not the infantryman, locked the housing unit door during the questioning).
2008 (September Term)UnitedStates v. Chatfield, 67 M.J. 432 (theprosecution may not use statements, whether exculpatory or inculpatory,stemming from custodial interrogation of the accused unless itdemonstrates theuse of procedural safeguards effective to secure the privilege againstself-incrimination; the safeguards must take the form of specificwarnings –prior to any questioning, the person must be warned that he has a righttoremain silent, that any statement he does make may be used as evidenceagainsthim, and that he has a right to the presence of an attorney, eitherretained orappointed).
(custodialinterrogation is defined as questioning initiated by law enforcementofficersafter a person has been taken into custody or otherwise deprived of hisfreedomof action in any significant way; to answer the question whether anaccused isin custody for purposes of Miranda, all of the circ*mstancessurroundingthe interrogation are considered to determine how a reasonable personin theposition of the accused would gauge the breadth of his or her freedomof action;two inquiries are essential to a custody determination:first, what were the circ*mstances surroundingthe interrogation; and second, given those circ*mstances, would areasonableperson have felt he or she was not at liberty to terminate theinterrogationand leave; the facts are considered objectively in the context of areasonableperson’s perception when situated in the accused’s position).
(to be considered in custodyforpurposes of Miranda, a reasonable person in appellant’sposition musthave believed he was restrained in a formal arrest or that his freedomofmovement was restrained to a degree associated with a formal arrest; asaninitial matter, there is no per se rule that whenever a suspect appearsat apolice station for questioning, the suspect is therefore in custody;severalfactors are looked at when determining whether a person has beenrestrained,including: (1) whether the personappeared for questioning voluntarily; (2) the location and atmosphereof theplace in which questioning occurred; (3) the length of the questioning;(4) the number of law enforcement officerspresent at the scene;and (5) the degree of physical restraint placed upon the suspect).
(appellant was not in custodysuchthat Miranda warnings were required when several militaryofficersaccompanied him to a civilian police station and when he gave astatement to acivilian police officer at that station, where under the circ*mstances,appellant appeared for questioning voluntarily and where a reasonableperson inappellant’s situation at the police station would have realized that hewasfree to leave and would not have believed he was subject to a formalarrest orrestraint; in this case, the military officers did not order appellantto go tothe police station or to answer questions; and at the time of theinterviewwith the civilian police officer, there were no other police officersat thestation, plans had been made between the military officers and thepoliceofficer for returning appellant to the officers for dinner, theinterviewoccurred in an office rather than in an interrogation room, theinterview wasshort, the interview was conducted with the office door open, appellantwasneither handcuffed nor told he could not leave; and appellant admittedthat thepolice officer was not accusatory).
UnitedStates v. Delarosa, 67 M.J. 318 (prior toinitiating interrogation, lawenforcement officials must provide rights warnings to a person incustody).
(when Miranda warningsare required,the person must be advised of the right to remain silent, that anystatementmade by the person can be used against that person in a court of law,that theperson has the right to consult with counsel and have counsel presentduringquestioning, and that counsel will be appointed if the person cannotafford alawyer).
UnitedStates v. Simpson, 54 MJ 281 (the government has the burden ofestablishing compliance with rights warning requirements by apreponderance of the evidence).
(whetherthat portion of the rights warning requiring that the suspect beinformed of “the nature of the accusation” was inconsistent withapplicable rights warning requirements is reviewed de novo).
(infulfilling the obligation of inform a suspect about the nature of theaccusation, it is not necessary that an accused or suspect be advisedof each and every possible charge under investigation, nor that theadvice include the most serious or any lesser-included offenses beinginvestigated; nevertheless, the accused or suspect must be informed ofthe general nature of the allegation, to include the area of suspicionthat focuses the person toward the circ*mstances surrounding theevent).
(amongthe factors to consider in determining whether a suspect has beensatisfactorily informed about the nature of the accusation are:whether the conduct is part of a continuous sequence of events; whetherthe conduct was within the frame of reference supplied by the warnings;or whether the interrogator had previous knowledge of the unwarnedoffenses).
(advisingsuspect that he was being questioned about indecent acts or libertieswith a named individual sufficiently oriented appellant to the natureof the accusations against him where the indecent acts and sodomy weresufficiently related so that the warning oriented appellant toward thenature of the accusations against him).
UnitedStates v. Norris, 55 MJ 209 (Article 31(b) applies only tosituations in which, because of military rank, duty, or other similarrelationship, there might be subtle pressure on a suspect to respond toan inquiry, and two prerequisites must be met before Article 31(b) willapply: (1) a questioner subject to the Code was acting in anofficial capacity in his inquiry as opposed to only having a personalmotivation; and (2) the person questioned must perceive that theinquiry involved was more than a casual conversation).
(inreviewing a military judge’s ruling on a motion to suppress underArticle 31(b), Court applies a clearly-erroneous standard of review tofindings of fact and a de novo standard to conclusions of law).
(questionerwas acting in a personal rather than an official capacity inconversation with accused, and Article 31(b) did not apply,where: (1) the questioner’s purpose was to understand and clarifythe content of a letter written by his daughter to a man who had becomea friend; (2) questioner did not seek out the accused with a viewtowards elevating the matter to a criminal investigation andprosecution; (3) at the time of the conversation, questioner consideredthe situation to be a family matter; and (4) the findings of fact,supported by the evidence, indicate that the conversation was betweenfriends).
UnitedStates v. Catrett, 55 MJ 400 (whether a suspect is in custodyfor purposes of Mirandawarnings is a de novo questionof law to be decided on the basis of the facts found by thefactfinder).
(appellantwas in custody for purposes of Miranda warningswhere:(1) the police told appellant he was not free to leave the living roomunless a police officer accompanied him; (2) there was always anofficer present to control appellant’s movements; (3) an officertestified that appellant was under detention, not free to leave, andwould have been stopped if he attempted to do so; and (4) appellantnever left the living room until he was taken to the police station).
(a“public safety” exception to Mirandawarnings requirementapplied where: (1) civilian police were responding to adomestic-assault complaint in which a gun was reportedly involved; (2)an empty holster was found during a search of appellant’s apartmentbefore the challenged questioning; and (3) the questions asked by thepolice, although phrased in terms of the cause of the reported assault,were found by the judge to be legitimate attempts by police to locatethe still-missing gun).
(U.S.Court of Appeals for the Armed Forces rejects argument that exceptionsto the constitutionally based Mirandarule may not be carvedout by the Supreme Court, citing Dickerson v. United States,530 U.S. 428, 441 (2000)).
(assuminga Miranda violation,admitting appellant’s statement tocivilian police that he hit the victim with a dog bone and a statue washarmless beyond a reasonable doubt where the victim testified to thesame assault, eyewitness statements from appellant’s wife to the sameeffect were admitted, and the bloodied dog bone was discovered in plainview before appellant made the challenged incriminating admissions).
