U.S. v. Hansen, 59 M.J. 410

First Principles: Constitutional Matters: Generally

1. where bedrock constitutional rights are at issue and are waived, we should not settle for inference and presumption when certainty is so readily obtained

Trial Stages: Merits: Guilty Pleas

1. an accused entering a guilty plea waives several of his constitutional rights; these constitutional rights include the right to trial by jury, the right to confront one’s accusers, and the privilege against compulsory self-incrimination; these rights are fundamental to the military justice system; as a result, if there is to be a waiver of these rights, it must be an intentional relinquishment or abandonment of a known right or privilege
2. the record of trial must demonstrate that the military trial judge or president personally addressed the accused, advised him that his plea waives his right against self-incrimination, his right to a trial of the facts by a court-martial, and his right to be confronted by the witnesses against him; and that he waives such rights by his plea; the judge must make a finding that there is a knowing, intelligent, and conscious waiver in order to accept the plea; that waiver is not to be presumed from a silent or inadequate record; what is important, in our view, is that the accused is aware of the substance of his rights and voluntarily waives them
3. although this Court recognizes that the military judge should advise the accused of the rights he is waiving by pleading guilty, we have previously declined to adopt a per se rule that a failure to fully advise an accused mandates reversal; instead, the issue is not whether there is exemplary compliance with what we had in mind in Care but rather whether the combination of all the circumstances leads the court to conclude that the accused’s plea was informed and voluntary
4. we consider United States v. Burton, 21 C.M.A. 112, 44 C.M.R. 166 (1971), the low water mark as far as what the record must include to demonstrate that the accused was properly advised of his rights
5. based on the record, we believe appellant was advised of, understood, and knowingly waived his right to a trial of the facts; however, we are not prepared to conclude the same with respect to appellant’s right against self-incrimination or his right to be confronted by and cross-examine witnesses; the combination of all the circumstances surrounding the judge’s statements regarding those particular rights falls short of demonstrating that appellant’s guilty plea and waiver of the rights was informed and voluntary within the meaning of McCarthy, Boykin, and Care; we cannot be confident that appellant intelligently waived these rights notwithstanding the presence of counsel; after all, the military judge is required to ensure that the accused personally understands the rights he is about to waive
6. where bedrock constitutional rights are at issue and are waived, we should not settle for inference and presumption when certainty is so readily obtained
7. this Court does not require incantation of constitutional formulas; however, we do require a record of confidence that an individual accused had his rights explained to him, understood his rights, and knowingly and intelligently waived them; because the relinquishment of these bedrock constitutional rights is the essence of the plea bargain, we will not presume or imply that a military accused understood them and waived them, absent a demonstrable showing in the record that he did in fact do so

Trial Stages: Merits: Pretrial Agreements

1. pretrial agreements are mortar and brick in the military justice system; the knowing and intelligent waiver of constitutional rights is the foundation upon which they rest; this Court does not require incantation of constitutional formulas; however, we do require a record of confidence that an individual accused had his rights explained to him, understood his rights, and knowingly and intelligently waived them; because the relinquishment of these bedrock constitutional rights is the essence of the plea bargain, we will not presume or imply that a military accused understood them and waived them, absent a demonstrable showing in the record that he did in fact do so