U.S. v. Swift, 53 M.J. 439

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Article 31

1. 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)
2. 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
3. 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
4. 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
5. questioning by a military superior in the immediate chain of command will normally be presumed to be for disciplinary purposes
6. 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
7. 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
8. 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
9. under circumstances of this case, government failed to rebut the strong presumption that first sergeant was part of an investigation that included disciplinary purposes
10. exclusionary rule of Article 31(d) applies to all offenses, no matter how serious
11. 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
12. 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
13. court set aside conviction for false official statement based directly upon inadmissible, unwarned statements of appellant
14. 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
15. 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
16. 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
17. 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

Trial Stages: Appeals: Harmless / Prejudicial Error

1. even though a false official statement specification was based upon a verbal response to an unwarned inquiry and set aside, in light of remaining offenses and evidence in this case, court was convinced beyond a reasonable doubt that the error with respect to the dismissed offense was not prejudicial as to sentence

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. 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

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. where a decision of this Court is based on the plain meaning of a statute and is consistent with the context in which the statute was enacted, congressional inaction over a long period of time in response must be given great weight; under such circumstances, the decision whether it is necessary to modify the construction of the statute rests with Congress, not this Court
2. when assessing legislation created under Congress’s constitutional authority to “raise and support” the armed forces, courts are obligated to respect congressional judgments as to the rights and obligations of servicemembers; such judicial deference applies not only when Congress has provided servicemembers with less protective rights than available to civilian counterparts, but also when Congress has provided greater rights