U.S. v. Seay, 60 M.J. 73

First Principles: Constitutional Matters: Confessions

1. the Fifth Amendment in pertinent part guarantees that no suspect shall be compelled in any criminal case to be a witness against himself; the Supreme Court has interpreted the Fifth Amendment privilege against self-incrimination to encompass two distinct rights: the right to silence and the right to counsel specifically during pretrial questioning; the privilege against self-incrimination is further protected by Articles 27 and 31 and MRE 305(e) and 305(f)
2. given the inherently compelling pressures of custodial police interrogation, the Supreme Court enunciated the requirement, in pertinent part, that if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent, and has the right to consult with a lawyer and to have the lawyer with him during interrogation; even after Miranda warnings are given and waived, a suspect may change his mind during questioning and assert these rights; the Supreme Court in Miranda twice emphasized that if the suspect invokes the right to remain silent or the right to speak to a lawyer, the police may not question him; the military has explicitly adopted the Miranda warning requirements
3. the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his right to cut off questioning was scrupulously honored
4. the Supreme Court has recognized that a subsequent administration of rights warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement; in such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights; we have also held that subsequent rights warnings may effect a purging of the taint from prior unwarned statements

First Principles: Constitutional Matters: Right to Counsel

1. the Fifth Amendment right to counsel applies to pretrial interrogation; the Sixth Amendment provides criminal accused the right to counsel during criminal proceedings
2. when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights; an accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police
3. one cannot anticipatorily invoke the right to counsel prior to custodial interrogation
4. custodial interrogation may be reinitiated without counsel being present where a suspect is provided a meaningful opportunity to consult with counsel, and subsequently waives his right to counsel

Core Criminal Law Subjects: Crimes: Article 86 - Absence without Leave Pre-2019 offenses

1. to determine whether the asportation element of kidnapping is more than an incidental or momentary detention, this Court considers the following factors: (1) the occurrence of an unlawful seizure, confinement, inveigling, decoying, kidnapping, abduction or carrying away and a holding for a period; both elements must be present; (2) the duration thereof; is it appreciable or de minimis; this determination is relative and turns on the established facts; (3) whether these actions occurred during the commission of a separate offense; (4) the character of the separate offense in terms of whether the detention/asportation is inherent in the commission of that kind of offense, at the place where the victim is first encountered, without regard to the particular plan devised by the criminal to commit it; (5) whether the asportation/detention exceeded that inherent in the separate offense and, in the circumstances, evinced a voluntary and distinct intention to move/detain the victim beyond that necessary to commit the separate offense at the place where the victim was first encountered; and (6) the existence of any significant additional risk to the victim beyond that inherent in the commission of the separate offense at the place where the victim is first encountered; it is immaterial that the additional harm is not planned by the criminal or that it does not involve the commission of another offense
2. in the case at bar, appellant’s confession and the forensic evidence of the murder, including the victim’s body and the crime scene itself, establish that the acts of restraint and asportation occurred prior to the actual murder, and exceeded those acts inherent to the commission of murder; we therefore hold that a reasonable trier of fact could find beyond a reasonable doubt that the elements of kidnapping were satisfied

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Corroboration

1. 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
2. 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

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Invocation of Rights

1. 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

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Subsequent Confessions

1. 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
2. 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

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

1. a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion; a military judge abuses his discretion when his findings of fact are clearly erroneous, when he is incorrect about the applicable law, or when he improperly applies the law
2. the test for legal sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; this Court reviews questions of legal sufficiency de novo