Generally:
2005
United
States v. Bresnahan, 62 M.J. 137 (Article 31(d), UCMJ, prohibits
the
admission of statements obtained from an accused through the use of
coercion,
unlawful influence, or unlawful inducement).
United
States v. Clark, 62 M.J. 195 (generally, in the absence of a
privilege, any
relevant statement by an accused could be admitted into evidence by the
government as a statement of a party opponent).
2001
United States v. Whitney, 55 MJ 413 (polygrapher’s testimony that appellant did not respond to a post-polygraph challenge to his truthfulness was admitted in violation of Mil.R.Evid. 301(f)(3) and was error of constitutional proportion).
(improper comment about appellant’s post-polygraph silence in the face of a challenge to his truthfulness was harmless 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 understood instruction to disregard testimony about appellant’s silence; (3) in the absence of evidence to the contrary, court members are presumed to understand and follow the military judge’s instructions; and (4) the victim provided credible, persuasive testimony).
2000
United
States v. Cobia, 53 MJ 305 (the transcript of
appellant’s
guilty plea to the same acts as charged at court-marital was admissible
as an
admission under MRE 801(d)(2)).
United
States v. Ruiz, 54 MJ 138 (statement by AAFES security
personnel, “[t]here seems to be some AAFES merchandise that hasn’t been
paid
for”, was not an interrogation requiring Article 31(b) warnings because
the
statement was no more than advising the appellant why he was stopped
and why
security personnel asked appellant to accompany them back to the
office; these
were words normally attendant to the detention process and not an
interrogation).
(interrogation does not include words or actions normally attendant
to
arrest and custody; merely informing a person of what he was suspected
would
not mandate an Article 31 rights’ advisement).
1999
United
States v. Scott, 51 MJ 326
(the Fifth Amendment right
against
self-incrimination applies during sentencing in a criminal case).
(the Fifth Amendment right against self-incrimination and Article 31, UCMJ, apply during pretrial and trial stages, including sentencing, in a criminal case).
United States v. Griffin, 50 MJ 278 (in the face of an appropriate motion or objection, the prosecution bears the burden of establishing the admissibility of a confession, and the military judge must find by a preponderance of the evidence that the statement was voluntarily made, considering the totality of the circumstances, including both the characteristics of the accused and the details of the interrogation).
United States v. Ford, 51 MJ 445 (the prosecution has the burden of establishing the admissibility of a confession, establishing by a preponderance of the evidence that the confession was voluntary).
2002
United
States v. Alameda, 57 MJ 190 (
(Appellant’s failure to deny an allegation of domestic assault did
not
support an inference of guilt and was irrelevant where: (1)
appellant was
told that he was being apprehended for an alleged assault; (2)
appellant had a
history of domestic violence; (3) appellant had been accused of
assaulting his
wife less that two weeks earlier; (4) appellant had been ordered to
stay away
from her because of the incident; and (5) even if appellant’s silence
constituted an admission, it would admit only an “alleged assault,” not
attempted premeditated murder).
(military judge committed constitutional error by permitting the
prosecution
to introduce evidence of appellant’s post-apprehension silence as
substantive
evidence of guilt, and to then comment on that evidence in closing
argument).
(instructions that did not address the question whether any adverse
inference could be drawn from appellant’s silence at the time of his
apprehension did not cure the error in trial counsel’s argument and may
have
exacerbated it by leading the members to conclude that they were
permitted to
draw an adverse inference from appellant’s silence at the time of his
apprehension).
2007
United States v. Gardinier, 65 M.J. 60 (a military
investigator who interviews a suspect must provide that suspect with
the statutorily required rights warnings under Article 31(b), UCMJ;
with few exceptions, statements obtained in violation of this article
may not be received in evidence against an accused in a trial by
court-martial).
(a military judge’s failure to
exclude an accused’s statement to a military CID agent and an
accompanying videotape of that interview, which followed an earlier
interview conducted by a civilian detective who gave the accused two Miranda
warnings, was error, where the military CID agent failed to give the
accused a rights advisement under Article 31(b), UCMJ, and where the
civilian detective was not conducting a joint investigation with the
military CID agent at the time; Article 31(b) rights differ slightly
from Miranda rights; Congress enacted Article 31(d) as a strict
enforcement mechanism to implement the rights’ warning requirements of
Article 31(b); Article 31(d) provides that no statement obtained from
any person in violation of this article may be received in evidence
against him in a trial by court-martial; in addition, MRE 305(a) and
(c) provide that statements obtained without a proper rights warning
are defined as involuntary and excluded from evidence by operation of
MRE 304(a)).
(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 circumstances; 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).
2006
(in
this case, the
Family Advocacy treatment manager who initially questioned the accused
about an
incident involving his showing pictures of naked adult women to his
eight-year-old stepdaughter was acting as an investigative agent of law
enforcement for the purposes of an Article 31 warnings requirement by
virtue of her close coordination with base legal and investigative
personnel;
not only was the manager part of the Child Sexual Maltreatment Response
Team
(CSMRT) which included an OSI agent and a judge advocate, the CSMRT
decided
that the manager would conduct the first interview of the accused to
determine
if there was enough evidence to proceed with the investigation, and the
manager
said that she was not treating the accused for any condition; the first
thing
she asked the accused when he arrived for his interview was “[d]id you
do it?”;
although the cooperative effort required by the Air Force family
advocacy
instruction does not render every member of the military community a
criminal
investigator or investigative agent, the manager’s actions here were
more akin
to an investigative agent than a social worker; thus, she was a person
subject
to the code for the purposes of Article 31(b) and MRE 305(c)).
(Article 31(b) contains four
textual predicates; first, the
article
applies to persons subject to the UCMJ; second and third, the article
applies
to interrogation or requests for any statements from an accused or a
person
suspected of an offense; and fourth, the right extends to statements
regarding
the offenses of which the person questioned is accused or suspected;
with
respect to Article 31(b)’s third textual predicate, an appellate court
applies
an objective test; whether a person is a suspect is an objective
question that
is answered by considering all the facts and circumstances at the time
of the
interview to determine whether the military questioner believed or
reasonably
should have believed that the servicemember committed an offense).
(in this case, the accused was
entitled to an Article 31
rights
advisement prior to his being interviewed by the Family Advocacy
Treatment
manager where the manager was a person subject to the code by virtue of
her
close coordination with base legal and investigative personnel, where
she
suspected the accused of an offense, and where the first question she
asked the
accused was whether he committed the offense).
(where a military questioner
is performing a law enforcement
or
disciplinary investigation, and the person questioned is suspected of
an
offense, then Article 31 warnings are required; whether the questioner
should
be considered to be performing such an investigation is determined by
assessing
all the facts and circumstances 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).
(where the military questioner
is not acting in a law
enforcement or
disciplinary capacity, rights warnings are generally not required,
because
military persons not assigned to investigate offenses, do not
ordinarily
interrogate nor do they request statements from others accused or
suspected of
crime).
(where the military questioner
is acting in an unofficial
capacity
and the person questioned does not perceive the questioning as more
than casual
conversation, warnings are not required; such an informal exchange
would not
implicate the interrogation or statement predicate of Article 31(b) or
Congress’ concern that, in the military context, junior enlisted
personnel
might feel undue pressure to make incriminating statements).
(Article 31(b) is interpreted
in a manner that recognizes
the
difference between questioning focused solely on the accomplishment of
an
operational mission and questioning to elicit information for use in
disciplinary proceedings; 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 circumstances, including whether the questioning
was
designed to evade the accused’s constitutional or codal rights).
(questioning by a military
superior in the chain of command
will
normally be presumed to be for disciplinary purposes, and a rights
warning will
be required).
(with respect to Article
31(b)’s third textual predicate
(i.e.,
whether a person is a suspect), this Court applies an objective test;
whether a
person is a suspect is an objective question that is answered by
considering
all the facts and circumstances at the time of the interview to
determine
whether the military questioner believed or reasonably should have
believed
that the servicemember committed an offense).
(the military judge’s finding
that the IG had no criminal
investigator or disciplinary duties that would require the IG to give a
rights
warning was clearly erroneous; although the IG’s responsibilities were
primarily administrative, they were not exclusively so; among other
things, the
IG was responsible for investigating wrongdoing and reporting criminal
violations to the office of special investigations; significantly, the
confidentiality that the IG could offer to complainants did not extend
to
criminal conduct).
(in an interview with
appellant concerning his complaints
about the
length of time it was taking to process his security clearance and the
denial
of a leave request, the IG should have reasonably suspected appellant
of the
offense of indecent acts and given him an Article 31(b) rights warning
when
appellant described his role in taking pictures of a rape incident).
2005
United
States v. Rodriguez, 60 MJ 239 (there are at least two circumstances when civilian
investigators
working in conjunction with military officials must comply with Article
31
warning requirement: (1) when the scope and character of the
cooperative
efforts demonstrate that the two investigations merged into an
indivisible
entity; and (2) when the civilian investigator acts in furtherance of
any
military investigation, or in any sense as an instrument of the
military).
(ATF agent was not acting as an instrumentality
of the
military when agent began questioning appellant during investigatory
stop and
search of his vehicle, and thus agent was not required to advise him of
his
Article 31 rights; ATF agent was conducting a separate and independent
ATF
investigation; surveillance support that NIS provided prior to the stop
did not
amount to a military investigation that merged indivisibly with the ATF
efforts).
United
States v. Traum, 60 MJ 226 (no person subject to the
UCMJ may
interrogate or request any statement from a person suspected of an
offense
without first warning that person in accordance with Article 31(b);
interrogation includes any formal or informal questioning in which an
incriminating response either is sought or is a reasonable consequence
of such
questioning).
2003
United
States v. Pipkin, 58 MJ 358 (it is not necessary
to spell
out the details of an accused's connection with the matter under
inquiry with
technical nicety; moreover, advice as to the nature of the charge need
not be
spelled out with the particularity of a legally sufficient
specification; it is
enough if, from what is said and done, the accused knows the general
nature of
the charge; a partial advice, considered in light of the surrounding
circumstances and the manifest knowledge of the accused, can be
sufficient to
satisfy the notice requirement of Article 31, UCMJ).
(it is not necessary that an accused or suspect be advised of each
and every
possible charge under investigation, nor that the advice include the
most
serious or any lesser-included charges being investigated;
nevertheless, the
accused or suspect must be informed of the general nature of the
allegation, to
include the area of suspicion that focuses the person toward the
circumstances
surrounding the event).
(possible factors that might be considered in determining whether
the
nature-of-the-accusation requirement is satisfied include whether the
conduct
is part of a continuous sequence of events, whether the conduct was
within the
frame of reference supplied by the warnings, or whether the
interrogator had
previous knowledge of the unwarned offenses; these factors are not
exhaustive,
but are among the possible factors to be considered; necessarily, in
questions
of this type, each case must turn on its own facts; other factors might
also
bear on the application of Article 31(b), including, as in this case,
the
complexity of the offense at issue).
(the precision and expertise of an attorney in informing an accused
of the
nature of the accusation under Article 31 is not required).
(a warning on distribution will better orient a suspect to a
suspicion of
conspiracy to distribute than a warning on use and possession; the
Government
has the burden of establishing compliance with rights warning
requirements by a
preponderance of the evidence; the military judge concluded that the
Government
had met its burden in this case; the discrepancy between the oral
warning (use,
possession, and distribution) and the rights advisement form (use and
possession) is not enough to find the military judge’s findings clearly
erroneous; appellant’s response to investigators, that the interview
had to do
with his former roommate (and conspirator) and drugs, makes it clear
that he
was oriented to the nature of the accusation; thus, we hold that the
charged
conspiracy was within the frame of reference supplied by the warnings
for the
purposes of Article 31, UCMJ).
United
States v. Traum, 60 MJ 226 (a request to take a
polygraph may
arise in a variety of circumstances related to interrogation; in each
instance,
the question will be whether an incriminating response is sought or is
the
reasonable consequence of the comment or remark; of course, an Article
31(b)
rights advisement prior to such a question would remove the necessity
for such
analysis).
(in
this case, a
law enforcement agent’s request that the accused take a polygraph was
not an
interrogation or request for a statement within the meaning of Article
31, and
did not require warnings, where the reasonable consequence of the
request was
not an incriminating response; the reasonable consequence of the
agent’s question
in the context presented was either yes or no; in addition, the
polygraph and
its operator were located in an adjacent room, and the agent’s
objective was to
encourage the accused to take a polygraph and not to ask questions that
might
serve as an investigative substitute for what the agents hoped to
garner from
the administration of the polygraph exam).
2002
United
States v. Guyton-Bhatt, 56 MJ 484 (there is a
two-prong
test to determine whether an Article 31 warning is required: (1)
was a
questioner subject to the Code acting in an official capacity in his
inquiry or
only with a personal motivation; and (2) whether the person questioned
perceived that the inquiry involved more than a casual conversation).
(Article 31, UCMJ, warnings are not required to be given by:
(1) a
military doctor, psychiatric social worker, or nurse prior to asking
questions
of a patient for medical diagnosis or treatment; (2) an in-flight
aircraft crew
chief prior to questioning, for operational reasons, an irrational
crewman
about possible drug use; (3) military pay officials questioning a
servicemember
about a pay or allowance entitlement; or (4) a negotiator trying to end
an armed
standoff, provided the discussion was truly designed to end the
standoff,
rather than to obtain incriminating statements to be used against the
suspect
at trial).
(military defense counsel may not deliberately seek incriminating
answers
from a suspect unrepresented by counsel without first giving Article
31, UCMJ,
rights warnings).
(legal assistance officer who, upon being shown a promissory note,
suspected
forgery and felt appellant had committed a criminal offense, who
recommended
only criminal action, and who called appellant using the authority of
his
position to solicit information on the matter, was acting as an
investigator in
pursuing this criminal action and was required to give an Article 31
warning).
(where nearly all of the information secured by a legal assistance
officer
in violation of Article 31 was introduced at trial through independent
sources,
the error in admitting appellant’s statements to the legal assistance
officer
was harmless beyond a reasonable doubt.
(Article 31(b) would apply to a foreign interrogation only if it is
shown
that the foreign authorities were acting as an agent of the military
during
their interrogations of a suspect).
(under either a de novo standard of review or clearly
erroneous
standard because under either standard, the military judge’s ruling was
correct
because appellant did not meet his burden of establishing that the
Icelandic
investigators were acting under the control or at the direction of the
Naval
investigators so as to trigger a requirement for Article 31 warnings).
(limited assistance that NCIS agents provided to the Icelandic
police in
this case, such as locating appellant and American witnesses, was
undertaken
pursuant to the defense agreement between the two countries, and did
not
constitute “participation” within the meaning of the Mil.R.Evid.
305(h)(2)).
United
States v. Alameda, 57 MJ 190 (privilege against
self-incrimination recognized in Article 31(a), supra, is virtually
identical
to the privilege under the Fifth Amendment; thus, Fifth Amendment
analysis also
applies to Article 31(a)).
United
States v. Benner, 57 MJ 210 (when a chaplain
questions a
penitent in a confidential and clerical capacity, the results may not
be used
in a court-martial because they are privileged; therefore, the Article
31(b)
and Tempia warnings are not required; conversely, if a military officer
who is
also a chaplain acts on the premise that the penitent’s disclosures are
not
privileged, then warnings are required).
(a chaplain was acting outside his responsibilities as a chaplain,
and he
was acting solely as an Army officer where the chaplain informed
appellant that
he was obliged to report appellant’s action; as such, he was required
to
provide an Article 31 warning before further questioning).
2001
United
States v. Simpson, 54 MJ 281 (the government has
the
burden of establishing compliance with rights warning requirements by a
preponderance of the evidence).
(whether that portion of the rights warning requiring that the
suspect be
informed of “the nature of the accusation” was inconsistent with
applicable
rights warning requirements is reviewed de novo).
(in fulfilling the obligation of inform a suspect about the nature
of the
accusation, it is not necessary that an accused or suspect be advised
of each
and every possible charge under investigation, nor that the advice
include the
most serious or any lesser-included offenses being investigated;
nevertheless,
the accused or suspect must be informed of the general nature of the
allegation, to include the area of suspicion that focuses the person
toward the
circumstances surrounding the event).
(among the factors to consider in determining whether a suspect has
been
satisfactorily informed about the nature of the accusation are:
whether
the conduct is part of a continuous sequence of events; whether the
conduct was
within the frame of reference supplied by the warnings; or whether the
interrogator had previous knowledge of the unwarned offenses).
(advising suspect that he was being questioned about indecent acts
or
liberties with a named individual sufficiently oriented appellant to
the nature
of the accusations against him where the indecent acts and sodomy were
sufficiently related so that the warning oriented appellant toward the
nature
of the accusations against him).
United
States v. Norris, 55 MJ 209 (Article 31(b) applies
only to
situations in which, because of military rank, duty, or other similar
relationship,
there might be subtle pressure on a suspect to respond to an inquiry,
and two
prerequisites must be met before Article 31(b) will apply: (1) a
questioner subject to the Code was acting in an official capacity in
his
inquiry as opposed to only having a personal motivation; and (2) the
person
questioned must perceive that the inquiry involved was more than a
casual
conversation).
(in reviewing a military judge’s ruling on a motion to suppress
under
Article 31(b), Court applies a clearly-erroneous standard of review to
findings
of fact and a de novo standard to conclusions of law).
(questioner was acting in a personal rather than an official
capacity in
conversation with accused, and Article 31(b) did not apply,
where: (1)
the questioner’s purpose was to understand and clarify the content of a
letter
written by his daughter to a man who had become a friend; (2)
questioner did
not seek out the accused with a view towards elevating the matter to a
criminal
investigation and prosecution; (3) at the time of the conversation,
questioner
considered the situation to be a family matter; and (4) the findings of
fact,
supported by the evidence, indicate that the conversation was between
friends).
United
States v. Catrett, 55 MJ 400 (whether a suspect is
in
custody for purposes of Miranda
warnings is a de novo
question of
law to be decided on the basis of the facts found by the factfinder).
(appellant was in custody for purposes of Miranda warnings
where: (1) the police told appellant he was not free to leave the
living
room unless a police officer accompanied him; (2) there was always an
officer
present to control appellant’s movements; (3) an officer testified that
appellant was under detention, not free to leave, and would have been
stopped
if he attempted to do so; and (4) appellant never left the living room
until he
was taken to the police station).
(a “public safety” exception to Miranda warnings
requirement
applied
where: (1) civilian police were responding to a domestic-assault
complaint in which a gun was reportedly involved; (2) an empty holster
was
found during a search of appellant’s apartment before the challenged
questioning; and (3) the questions asked by the police, although
phrased in
terms of the cause of the reported assault, were found by the judge to
be
legitimate attempts by police to locate the still-missing gun).
(U.S. Court of Appeals for the Armed Forces rejects argument that
exceptions
to the constitutionally based Miranda
rule may not be carved
out by the
Supreme Court, citing Dickerson
v. United States, 530 U.S. 428,
441
(2000)).
(assuming a Miranda
violation, admitting appellant’s
statement to
civilian police that he hit the victim with a dog bone and a statue was
harmless beyond a reasonable doubt where the victim testified to the
same
assault, eyewitness statements from appellant’s wife to the same effect
were
admitted, and the bloodied dog bone was discovered in plain view before
appellant
made the challenged incriminating admissions).
2000
United
States v. Swift, 53 MJ 439 (Congress, by statute,
has
provided members of the armed forces with a rights’ warning requirement
that is
broader than the warnings required in a civilian setting as a matter of
constitutional law under Miranda
v. Arizona, 384 U.S. 435
(1966)).
(case law has interpreted Article 31 in a manner that recognizes the
differences between questioning focused on the accomplishment of a
military
mission and questioning to elicit information for use in disciplinary
proceedings; thus, warnings under Article 31 have been required
where:
(1) the person being interrogated is a suspect at the time of the
questioning;
and, (2) the person conducting the questioning is participating in an
official
law enforcement or disciplinary investigation or inquiry).
(whether a person is a “suspect” is an objective question that
requires
consideration of all the facts and circumstances at the time of the
interrogation to determine whether the military questioner believed or
reasonably should have believed that the servicemember committed an
offense).
(whether questioning is for law enforcement or disciplinary purposes
is
determined by assessing all the facts and circumstances 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).
(questioning by a military superior in the immediate chain of
command will
normally be presumed to be for disciplinary purposes).
(findings of fact made in support of a ruling on a motion to
suppress a
statement on the grounds that Article 31 was not complied with are
reviewed
using a clearly-erroneous standard; conclusions of law are reviewed de
novo).
(information coming to the attention of a military official that
raises
questions about the eligibility status of a servicemember’s spouse or
dependents
for military benefits does not, in itself, establish a basis for
designating
that member as a suspect for purposes of Article 31, even if the
questioning
official has a “hunch” that further inquiries may disclose a crime).
(in light of the relatively low quantum of evidence required to
treat an
individual as a suspect, appellant reasonably should have been viewed
as a
suspect of the offense of bigamy where the commander and first sergeant
had
information generally reflecting two alleged wives, an alleged divorce
decree
which the first wife claimed to know nothing about and which could not
be
confirmed by resort to civilian court records, and conflicting data
about
appellant’s spouse in military records; where the first sergeant also
had
recently counseled appellant on matters relating to first wife, yet
second wife
asserted that a divorce had taken place two years earlier; where first
sergeant
considered this situation unusual and consulted the Manual for
Courts-Martial
concerning bigamy; and where, when appellant denied the allegations,
first
sergeant advised appellant of the maximum punishment for bigamy).
(under circumstances of this case, government failed to rebut the
strong
presumption that first sergeant was part of an investigation that
included
disciplinary purposes).
(exclusionary rule of Article 31(d) applies to all offenses, no
matter how
serious).
(an unwarned statement made during an investigation and obtained in
violation of Article 31(b) may not be introduced by the prosecution
against a
non-testifying servicemember to prove the offense of false official
statement).
(with respect to conviction for bigamy, court was satisfied beyond a
reasonable doubt that appellant was not prejudiced by unwarned
statements where
significant evidence was adduced which was not derived from the
unwarned
statements).
(court set aside conviction for false official statement based
directly upon
inadmissible, unwarned statements of appellant).
(a person may be required to produce specific documents even though
they
contain incriminating assertions of fact or belief when the creation of
those
documents was not compelled within the meaning of the privilege against
self-incrimination; the contents of documents voluntarily prepared
before the
compelled production are not protected by the Fifth Amendment or
Article 31(a)
because the documents could not be said to contain compelled
testimonial
evidence).
(where the record indicated that appellant voluntarily created a
purported
divorce decree before first sergeant requested its production,
appellant could
not have objected to producing a divorce decree solely on the basis
that the
fraudulent contents were incriminating).
(under the required records exception to the Fifth Amendment and
Article
31(a), neither the content nor the act of production of documents are
protected
by the Fifth Amendment if the government can satisfy the following
test:
(1) the requirement that the records be kept must be essentially
regulatory;
(2) the records must be the kind which the regulated party has
customarily
kept; and (3) the records themselves must be either public documents or
have
assumed public aspects which render them at least analogous to public
documents).
(even if appellant’s act of producing a divorce decree had
testimonial
aspects which were arguably incriminating, the production would fall
within the
“required records” exception to the Fifth Amendment and Article 31(a)
where: (1) the requirement to produce a divorce decree in order
to
establish and update military records supporting spousal eligibility
for
benefits was regulatory and served a legitimate administrative purpose;
(2) a
divorce decree is the type of record customarily kept by a party; and
(3) it is
a public record).
1999
United
States v. Mitchell, 51 MJ 234 (in deciding whether
questioning
by command authorities constitutes interrogation, care must be
exercised to
ensure that a suspect’s sense of loyalty, trust, and confidence in
leaders does
not obscure his/her legal rights under the Constitution and the UCMJ).
(totality of the circumstances will be considered to determine
whether
questioning by a representative of command is an interrogation).
2008 (Transition)
United
States v. Harcrow, 66 M.J. 154 (admissions can only be used
as evidence if they
are independently corroborated; under MRE 304(g), 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, either direct or
circumstantial, has been introduced that corroborates the essential
facts
admitted to justify sufficiently an inference of their truth; 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).
2005
United
States v. Arnold, 61
M.J. 254 (MRE 304(g) provides that 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 introduced that
corroborates
the essential facts admitted to justify sufficiently an inference of
their
truth; independent evidence is evidence that is not based on or derived
from
the accused’s extrajudicial statements).
(the principle of
corroboration embedded
in MRE 304(g), like the principle underpinning its civilian
counterparts, is
intended to guard against the false or coerced confession; however,
corroborating evidence need not confirm each element of an offense, but
rather
must corroborate the essential facts admitted to justify sufficiently
an
inference of their truth; this inference may be drawn from a quantum of
corroborating evidence that this Court has described as very slight).
(testimony solely derived from
a
witness’s review of an accused’s confession cannot independently serve
to
corroborate that confession).
2004
United
States v. Seay, 60 MJ 73 (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, either direct or
circumstantial, had been introduced that corroborates the essential
facts
admitted to justify sufficiently an inference or their truth; 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 of the
corpus
delicti of the offense; rather, the corroborating evidence must raise
only an
inference of truth as to the essential facts admitted; moreover, while
the
reliability of the essential facts must be established, it need not be
done
beyond a reasonable doubt or by a preponderance of the evidence).
(appellant
and
the other person named in the confession were seen with the victim
shortly
before he disappeared; the victim died as a result of foul play; the
victim’s
body was found in a concealed place; the post-mortem revealed no
wallet; and no
wallet was ever found; for the purposes of corroborating a confession,
there is
no requirement that the members conclude beyond a reasonable doubt, or
even by
a preponderance of the evidence, that the corroborating facts alone
(i.e.,
without the confession) establish that this victim, in fact, carried a
wallet
at the time of death; rather, the rule simply requires a presence of
facts that
enable the members to infer the truth of the essential facts in the
confession;
when a person confesses to participation in the larceny of a wallet, it
is
reasonable to infer the truth of the confession from the fact that the
victim
named in the confession knew the appellant, died as a result of foul
play, was
found in a concealed place, and did not have a wallet at the time or
thereafter; we therefore hold that these reasonable inferences
adequately
corroborated appellant’s confession).
2002
United
States v. Cravens, 56 MJ 370 (appellant admitted
on April
1, 1997, to “doing a line”, and a police officer observed that
appellant’s
demeanor at that time also suggested recent drug use; scientific
evidence
further indicating drug use which was proximate in time to the charged
use is,
at the very least, relevant to corroborate his confession).
United
States v. Grant, 56 MJ 410 (military judge did not
abuse
his discretion by admitting a drug screen report on the issue of
whether or not
appellant’s confession was worthy of belief where he expressly stated
that he
was admitting the report for the limited purpose of corroborating the
confession
and instructed the members accordingly; the fact that there are
additional
foundational requirements for admitting a urinalysis offered on the
substantive
issue of wrongful use does not change the law of evidence pertaining to
the
admissibility of a business record offered to corroborate a
confession).
(although a chain of custody is a foundational prerequisite for
admitting
real or tangible evidence on a substantive issue in the case, a drug
screen,
introduced to corroborate appellant’s confession, was not offered to
show the
actual state of the urine sample or commission of a substantive
offense;
appellant’s confession was the evidence offered on his wrongful use
during the
period charged).
(a confession must be corroborated by independent evidence
justifying
sufficiently an inference of truth of the essential facts admitted in
order to
ensure that the confession is not false).
(the quantum of evidence needed to corroborate a confession may be
very
slight).
(the drug screen report as corroboration evidence indicated the
actual
presence of the substance in appellant’s system in late November, and
raised an
inference that appellant had recently used the very substance he had
confessed
to using over the previous five or six weeks).
2001
United
States v. Baldwin, 54 MJ 464 (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 corroboration must raise
only in
inference of truth as to the essential facts admitted, and the
reliability of
the essential facts need only be established by a preponderance of the
evidence.
2007
United States v. Moran, 65 M.J. 178 (MRE 301(f)(3)
provides that the fact that the accused during official questioning and
in exercise of rights under the Constitution requested counsel is
inadmissible against the accused).
(in the American system of
justice, the exercise of the right to counsel is proof of neither guilt
nor innocence).
2006
2004
United
States v. Seay, 60 MJ 73 (appellant’s numerous
references to
counsel did not affect appellant’s confession because appellant did not
make an
unambiguous request for counsel, and appellant’s references to counsel
did not
occur during the custodial interrogation).
United
States v. Traum, 60 MJ 226 (the right to remain silent
protects against any disclosures that the witness reasonably believes
could be
used in a criminal prosecution or could lead to other evidence that
might be so
used; application of the privilege is not
limited to
persons in custody or charged with a crime; it may also be asserted by
a
suspect who is questioned during the investigation of a crime).
(this
Court has established that if an individual
indicates in any
manner, at any time prior to or during questioning, that he wishes to
remain
silent, the interrogation must cease; in addition, the MCM provides
that if a
person chooses to exercise the privilege against self-incrimination,
questioning must cease immediately).
(although no particular words or actions are
required to
exercise one’s Fifth Amendment right to silence, this Court has held
that its
invocation must be unequivocal before all questioning must stop).
(the
accused’s response that she did not
want to talk about the
details of the night that her infant daughter died did
not unequivocally invoke her right to remain silent as this response
did not
foreclose the possibility that she was willing to take a polygraph and
discuss
other aspects of the investigation, such as the child’s medical history
or the
manner in which she cared for her child).
2002
United
States v. Gilley, 56 MJ 113 (the government may
not use a
defendant’s assertion of his Fifth Amendment rights as substantive
evidence
against him, and under Mil.R.Evid. 301(f)(3) this prohibition applies
equally
to both comments on the accused’s right to remain silent and comments
on the
accused’s right to counsel, both of which flow from the Fifth
Amendment).
(violations of the prohibition against commenting on the accused’s
assertion
of his Fifth Amendment rights are subject to harmless error review).
(the government is permitted to make "a fair response" to claims
made by the defense, even when a Firth Amendment right is at stake).
(where prosecutorial comments are a fair response to a claim made by
the
defendant or his counsel, there is no violation of the Fifth Amendment
privilege against self-incrimination).
(reference to appellant’s request for counsel may have fairly
rebutted the
defense theory concerning pretrial statement and was not used as
substantive
evidence of guilt against appellant; even if it was error to allow the
testimony, given the context in which the issue arose here, court found
no
material prejudice to appellant’s substantial rights and, thus, no
plain
error).
(because appellant failed to object to testimony that he did not
read
written statement and requested counsel, and since the testimony
contradicted
appellant’s claim that he read the statement but refused to sign it
because it
was full of lies, court found that defense counsel opened the door to
the use
of this testimony for that limited purpose).
2001
United
States v. Simpson, 54 MJ 281 (denial of a motion
to
suppress a confession is reviewed under an abuse of discretion
standard, and
the trial judge’s findings of fact are accepted unless they are clearly
erroneous).
2008 (September Term)
United
States v. Wuterich, 67 M.J. 32 (the rule of
completeness is a rule that
benefits the party opposing admission of evidence, not the party
offering the
evidence).
United
States v. Goldwire, 55 MJ 139 (Mil. R. Evid.
304(h)(2)
allows the defense to complete an admission or confession whether it is
oral or
in writing, and provides the defense the option of doing so using Mil.
R. Evid
106 or 304(h)(2)).
1999
United
States v. Sanchez, 51 MJ 165 (conviction for failing to
report
serious offense did not violate appellant’s Fifth Amendment right
against
self-incrimination where appellant could have reported the offense
immediately
without incurring criminal liability).
(appellant’s unconditional guilty plea waived claim that conviction
for
failing to report serious offense violated appellant’s Fifth Amendment
right
against self-incrimination).
United
States v. Gray, 51 MJ 1 (statements made by appellant
pursuant
to a guilty plea in state court were not admitted at court-martial in
violation
of appellant’s Fifth Amendment right against self-incrimination as
appellant
had received rights warnings, invoked right to counsel, consulted with
counsel,
and agreed to provide information to both the police and to state
court, and
did so, in the presence of counsel).
2000
United
States v. Ruiz, 54 MJ 138 (a person’s failure to
deny an
accusation of wrongdoing concerning an offense for which at the time of
the
alleged failure the person was under official investigation does not
support an
inference of an admission of the truth of the accusation).
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
circumstances; 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 a
proper Article 31(b) rights advisement, his decision to make a
statement to a military CID agent despite an earlier unwarned statement
was made voluntarily, where the agent told the accused that another
statement was needed because he may not have been properly warned of
his rights before the earlier statement, the accused signed the written
rights advisement indicating that he waived his rights before giving
his subsequent statement, there was no suggestion that either statement
was given at a coercive event, and the accused’s relative age and
maturity level did not raise voluntariness concerns).
2006
(the absence of a cleansing
warning before a second
confession
after an earlier involuntary confession is not fatal to a finding that
the
second confession was voluntary).
(in this case, the accused’s
subsequent statements to an OSI agent after he gave an unwarned
statement to a Family Advocacy treatment manager were voluntary and
admissible
even though the agent did not give him a cleansing warning that his
prior
statement could not be used against him, where the interview with the
agent
occurred almost a month and a half after the initial interview with the
treatment
manager, giving the accused a substantial amount of time
to weigh
the pros and cons of continuing to talk with military authorities,
where the accused was a
mature,
experienced servicemember - a twenty-eight-year-old staff sergeant with
almost
ten years of military service, and where the conditions of the
accused’s second
interview were not coercive or inhumane).
United
States v. Seay, 60 MJ 73 (we hold that even
assuming appellant’s Fifth
Amendment
rights, Article 31(b), and the MREs were violated by the authorities’
continued
interrogation of appellant despite his invocation of the right to
silence
during the first questioning, the failure to provide appellant
appropriate
rights warnings during the pretextual phone calls, and the failure to
terminate
the pretextual phone calls, appellant’s eventual confession was
untainted).
(immediately
prior to appellant’s confession, he was reminded again that he could
remain
silent and could consult with a lawyer, and was carefully given a full
and fair
opportunity to exercise these options; appellant waived those rights
anew, and
in so doing created a clean slate for his confession; because
appellant’s
confession was untainted by prior events, the military judge did not
abuse his
discretion in admitting the confession into evidence at trial).
2002
United
States v. Benner, 57 MJ 210 (confession that
follows an
earlier confession obtained due to actual coercion, duress, or unlawful
inducement is presumptively tainted).
(a confession taken in compliance with Article 31(b) and Mil.R.Evid.
305
that follows an earlier unwarned confession obtained in violation of
Article
31(b) and Mil.R.Evid. 305 is not presumptively tainted, but is
admissible if
the subsequent confession is determined to be voluntary by the totality
of the
circumstances).
(in determining whether a subsequent confession is voluntary under
the
totality of the circumstances test, some of the relevant circumstances
include:
(1) the earlier, unwarned statement, but it does not presumptively
taint the
subsequent confession; (2) the fact that the subsequent confession was
preceded
by adequate warnings; and (3) while a cleansing warning is not a
prerequisite
to admissibility, an earlier unwarned statement and the lack of a
cleansing
warning before the subsequent statement are also part of the totality
of the
circumstances).
(where actual coercion, duress, or unlawful inducement was not
involved in
an initial unlawful confession, the totality of the circumstances is
reviewed de
novo to determine, as a matter of law, whether appellant’s
subsequent
confession meets the following test: Is the confession the
product of an
essentially free and unconstrained choice by its maker? If it is,
if he
has willed to confess, it may be used against him. If it is not,
if his
will has been overborne and his capacity for self-determination
critically
impaired, the use of his confession offends due process).
2008 (Transition)
United
States v. Freeman, 65 M.J. 451 (a confession is
involuntary, and thus
inadmissible, if it was obtained in violation of the self-incrimination
privilege or due process clause of the Fifth Amendment to the
Constitution of
the United States, Article 31, or through the use of coercion, unlawful
influence, or unlawful inducement).
(a court examines the totality
of the
surrounding circumstances to determine whether the confession is the
product of
an essentially free and unconstrained choice by its maker; in
determining
whether an accused’s will was overborne in a particular case, the court
assesses both the characteristics of the accused and the details of the
interrogation).
(promises
are considered only a factor in the
totality of the circumstances equation to determine whether a
confession is
voluntary; they are not of themselves determinative of involuntariness;
similarly,
lies, threats, or inducements are not determinative either; after all,
as the Miranda
rules were issued to counter-balance the psychological ploys used by
police
officials to obtain confessions, the presence of those ploys can hardly
be
considered to per se result in an involuntary confession).
(as
the application of the totality of
circumstances standard rests with the particular facts of each case, a
threat
to turn an accused over to civilian law enforcement is but one factor
to weigh
in deciding the voluntariness of a confession; a court does not examine
each of
the facts separately but rather in conjunction with all the other facts
in the
case).
(in this case, under the totality of the
circumstances, appellant’s confession was voluntary, where the
characteristics
of appellant and the details of the interrogation favored a finding of
voluntariness; despite the fact that interrogators lied to appellant
about the
evidence they had and threatened to turn his case over to civilian
authorities
where he would face stiffer punishment, appellant was advised of his
rights to
counsel and to remain silent and waived those rights, he never
complained about
the process, never asked for an attorney, never asked to stop the
interview or
leave, or in any other way indicated that he felt coerced or pressured
into
making a statement, he had several breaks during the interrogation in
which he
left the interrogation room, went outside, and smoked, he was provided
water
and declined offers for other food and drink, he was neither physically
abused
nor threatened with such abuse, and he prepared a written statement by
himself,
outside the presence of any investigator; under the totality of these
circumstances, appellant’s confession was voluntary).
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
circumstances; 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).
2006
(MRE 305(e)
provides for two situations where
counsel must be present during an interrogation, absent waiver: (1)
custodial
interrogations and (2) post-preferral interrogation).
2005
United
States v. Bresnahan, 62 M.J. 137 (an accused’s confession must be
voluntary
to be admitted into evidence).
(the accused’s confession to a
detective
that he might have shaken his infant son to try to stop his crying was
voluntary under the totality of the circumstances, even though the
detective
pressured the accused by telling him that the doctors needed to know
exactly
what happened to his son so they could save his life; although the
detective
had the intent of securing a confession by exploiting the accused’s
emotional
ties to his son, her statement was accurate, and she was not
confrontational or
intimidating; in addition, at the time, the accused had served over
five years
in the Army, did not suffer from any mental deficiency, and was not
detained,
questioned for a prolonged amount of time, or held in isolation for any
amount
of time; finally, regardless of whether the accused actually believed
the
doctors would not help his son unless he confessed, the detective’s
statements
would not provide a motive for him to lie; if the accused did not shake
his
son, then telling the detective that he did shake him would not help
the
doctors determine how to treat the baby appropriately).
2004
United
States v. Cuento, 60 MJ 106 (the necessary inquiry in
determining the voluntariness of a confession is whether the confession
is the
product of an essentially free and unconstrained choice by its maker;
if,
instead, the maker’s will was overborne and his capacity for
self-determination
was critically impaired, use of his confession would offend due
process).
(a
confession is
not automatically inadmissible, even though it was made after another
confession which was clearly involuntary; the prosecution must rebut
the
presumption that the later confession was the result of the same
influence
which led to the prior confession).
(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 a
product of the earlier one; on the other hand, 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 circumstances;
the
earlier, unwarned statement is a factor in this total picture, but it
does not
presumptively taint the subsequent confession).
(when
a prior
statement is actually coerced, the time that passes between
confessions,
the change in place of interrogations, and the change in identity of
the
interrogators all bear on whether that coercion has carried over into
the
second confession; only those statements that are “actually coerced”
require
application of the more stringent test generally described in MRE
304(b)(3), as
opposed to a showing of voluntariness by totality of the circumstances).
(while
a
so-called “cleansing statement” is a factor to consider in evaluating
the
voluntariness of a confession made following a prior, unwarned
statement, this
Court has held that where there are successive statements, it is not a
precondition to the admission of a properly obtained statement, that
the
accused be informed that a previous statement cannot be used against
him;
however, if there has been an earlier unwarned statement, the absence
of a
cleansing warning before the subsequent statement is one of the
circumstances
to be considered in determining voluntariness).
(evidence
that
was obtained as a result of an involuntary statement may be used when
the
evidence would have been obtained even if the involuntary statement had
not
been made; even evidence challenged as “derivative” from an involuntary
statement is admissible if the military judge finds by a preponderance
of the
evidence that it was not obtained by use of the statement, or that the
evidence
would have been obtained even if the statement had not been
made).
(in
determining
whether appellant’s subsequent NCIS statement was voluntary, the Court
assumed,
arguendo, that his earlier statement was produced by the coercive
effect of the
prerequisites placed on appellant’s reunification with his family by
the
California Child Protective Service; however, under the circumstances
of this
case, particularly the intervening events between the first and second
statements, the Government had carried its burden of demonstrating that
the
first statement did not taint the second statement, and that the second
was
voluntary; these circumstances included the following factors: (1)
appellant
was invited, not ordered to NCIS, and he arrived without command
escort, (2)
appellant was not in custody, (3) appellant made his second statement
seven
days after the first, with significant time for cool reflection and
consultation with an attorney, (4) appellant was told that he was at
NCIS
voluntarily and could leave at any time, (5) appellant was advised of
his
rights before his second statement, and he did not ask for an attorney
or indicate
that he wanted to leave or stop answering questions, (6) no mention was
made by
the NCIS agents to appellant about his prior statement, and no mention
was made
of the Child Protective Service prerequisites, and (7) the agents did
not make
any promises, inducements, or threats).
2002
United
States v. Benner, 57 MJ 210 (we review de novo
a
military judge’s determination that a confession is voluntary).
(appellant’s confession to CID was involuntary where appellant went
to the
chaplain for help but instead he was advised that Army Regulations and
the
Family Advocacy Center rules mandated that the chaplain “turn him in”
and
reveal his confession; faced with this Hobson’s choice of confessing to
CID or
having the chaplain reveal his confession to CID, he had little or no
choice
but to confess).
(appellant’s will was overborne, his capacity for self-determination
was
critically impaired, and the use of his confession offends due process
where
appellant was seeking clerical help, but instead of providing
confidential
counseling, the chaplain informed appellant that he was obliged to
report
appellant’s action and thus, unknown to the chaplain, breach the
communications
to clergy privilege).
(although CID advised appellant of his rights prior to a subsequent
confession, the chaplain had made it clear that if he invoked his
rights, the
chaplain would reveal his confession; such facts contribute to a
holding that
the Government did not carry its burden of establishing that
appellant’s
confession was voluntary).
United
States v. Ellis, 57 MJ 375 (the voluntariness of a
confession is a question of law to be reviewed de novo by
examining the
totality of all the surrounding circumstances including both the
characteristics of the accused and the details of the interrogation).
(the totality of circumstances considered in determining the
voluntariness
of a confession is not a cold and sterile list of isolated facts - the
totality
of the circumstances include the condition of the accused, his health,
age,
education, and intelligence; the character of the detention, including
the
conditions of the questioning and rights warning; and the manner of the
interrogation, including the length of the interrogation and the use of
force,
threats, promises, or deceptions).
(the soundness of appellant’s physical and psychological character
at the
time of interrogation are examined as part of the totality of the
circumstances
to determine whether the statements were voluntary).
(while the detectives’ advice to appellant concerning removing
appellant’s
remaining children from the home may have contributed to his
confession, the
mere existence of a causal connection does not transform appellant’s
otherwise
voluntary confession into an involuntary one; this consequence of
appellant’s
criminal conduct was unpleasant, but the law enforcement officers’
advice was an
accurate picture of what would happen in similar cases).
(the factual question whether a confession is reliable is for the
members of
a court-martial to decide; military judge finds a confession voluntary
as a
matter of law and admits it, members determine its voluntariness and
reliability as a matter of fact).
1999
United
States v. Griffin, 50 MJ 278 (in the face of an
appropriate
motion or objection, the prosecution bears the burden of establishing
the
admissibility of a confession, and the military judge must find by a
preponderance of the evidence that the statement was voluntarily made,
considering the totality of the circumstances, including both the
characteristics
of the accused and the details of the interrogation).
United
States v. Ford, 51 MJ 445 (the prosecution has the
burden of
establishing the admissibility of a confession, establishing by a
preponderance
of the evidence that the confession was voluntary).
(in spite of unwarned earlier questioning, a confession given later
was
voluntary where: (1) statements made during initial unwarned
interview
were not the product of actual coercion; (2) proper warnings preceded
second
interview; (3) other then the inherent coercive atmosphere of a station
house,
appellant was not deprived of personal comforts during second
interrogation;
(4) although no cleansing warning was given, appellant appeared to
understand
his rights; and, (5) there was no reference to earlier unwarned
statements).
United
States v. Henderson, 52 MJ 14(where appellant couched
his admissions
in an exculpatory story of self-defense to military authorities in
hopes of
avoiding problems with the German government, there was no indication
that
appellant’s will was overborne and his inculpatory admissions were
involuntary).
United States v. Simpson, 54 MJ 281 (the government has the burden of establishing compliance with rights warning requirements by a preponderance of the evidence).
(whether that portion of the rights warning requiring that the suspect be informed of “the nature of the accusation” was inconsistent with applicable rights warning requirements is reviewed de novo).
(in fulfilling the obligation of inform a suspect about the nature of the accusation, it is not necessary that an accused or suspect be advised of each and every possible charge under investigation, nor that the advice include the most serious or any lesser-included offenses being investigated; nevertheless, the accused or suspect must be informed of the general nature of the allegation, to include the area of suspicion that focuses the person toward the circumstances surrounding the event).
(among the factors to consider in determining whether a suspect has been satisfactorily informed about the nature of the accusation are: whether the conduct is part of a continuous sequence of events; whether the conduct was within the frame of reference supplied by the warnings; or whether the interrogator had previous knowledge of the unwarned offenses).
(advising suspect that he was being questioned about indecent acts or liberties with a named individual sufficiently oriented appellant to the nature of the accusations against him where the indecent acts and sodomy were sufficiently related so that the warning oriented appellant toward the nature of the accusations against him).
United States v. Norris, 55 MJ 209 (Article 31(b) applies only to situations in which, because of military rank, duty, or other similar relationship, there might be subtle pressure on a suspect to respond to an inquiry, and two prerequisites must be met before Article 31(b) will apply: (1) a questioner subject to the Code was acting in an official capacity in his inquiry as opposed to only having a personal motivation; and (2) the person questioned must perceive that the inquiry involved was more than a casual conversation).
(in reviewing a military judge’s ruling on a motion to suppress under Article 31(b), Court applies a clearly-erroneous standard of review to findings of fact and a de novo standard to conclusions of law).
(questioner was acting in a personal rather than an official capacity in conversation with accused, and Article 31(b) did not apply, where: (1) the questioner’s purpose was to understand and clarify the content of a letter written by his daughter to a man who had become a friend; (2) questioner did not seek out the accused with a view towards elevating the matter to a criminal investigation and prosecution; (3) at the time of the conversation, questioner considered the situation to be a family matter; and (4) the findings of fact, supported by the evidence, indicate that the conversation was between friends).
United States v. Catrett, 55 MJ 400 (whether a suspect is in custody for purposes of Miranda warnings is a de novo question of law to be decided on the basis of the facts found by the factfinder).
(appellant was in custody for purposes of Miranda warnings where: (1) the police told appellant he was not free to leave the living room unless a police officer accompanied him; (2) there was always an officer present to control appellant’s movements; (3) an officer testified that appellant was under detention, not free to leave, and would have been stopped if he attempted to do so; and (4) appellant never left the living room until he was taken to the police station).
(a “public safety” exception to Miranda warnings requirement applied where: (1) civilian police were responding to a domestic-assault complaint in which a gun was reportedly involved; (2) an empty holster was found during a search of appellant’s apartment before the challenged questioning; and (3) the questions asked by the police, although phrased in terms of the cause of the reported assault, were found by the judge to be legitimate attempts by police to locate the still-missing gun).
(U.S. Court of Appeals for the Armed Forces rejects argument that exceptions to the constitutionally based Miranda rule may not be carved out by the Supreme Court, citing Dickerson v. United States, 530 U.S. 428, 441 (2000)).
(assuming a Miranda violation, admitting appellant’s statement to civilian police that he hit the victim with a dog bone and a statue was harmless beyond a reasonable doubt where the victim testified to the same assault, eyewitness statements from appellant’s wife to the same effect were admitted, and the bloodied dog bone was discovered in plain view before appellant made the challenged incriminating admissions).