U.S. v. Brisbane, 63 M.J. 106

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. the knowing possession of images depicting sexually explicit conduct by minors, whether actual or virtual, when determined to be service-discrediting conduct or conduct prejudicial to good order and discipline, is an offense under Article 134
2. in this case, the evidence was legally sufficient to sustain the accused’s conviction for possession of child pornography under the general article as service-discrediting or prejudicial to good order and discipline where the accused told his neighbor that he possessed seven pictures of child pornography, and the disclosure alarmed the neighbor enough that he contacted OSI to determine whether any of the pictures included images of his children

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

1. a person subject to the UCMJ for the purposes of Article 31(b) and MRE 305(c) includes a person acting as a knowing agent of a military unit or of a person subject to the code; as such, civilian investigators working in conjunction with military officials must comply with Article 31: (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
2. 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)
3. 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
4. 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

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

1. where an earlier confession was “involuntary” only because the accused 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; one of the circumstances that is taken into account is the presence of a cleansing warning
2. 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
3. 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

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

1. in determining whether an accused’s confession was voluntary, a court must assess the totality of all the surrounding circumstances -- both the characteristics of the accused and the details of the interrogation; some of the factors taken into account have included the youth of the accused, his lack of education, or his low intelligence, the lack of any advice to the accused of his constitutional right, 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

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the military judge’s error in admitting an unwarned statement that the accused gave to the Family Advocacy treatment manager concerning an incident involving his eight-year-old stepdaughter was harmless beyond a reasonable doubt, where the accused repeated the same information and more to an OSI agent six weeks later, and the subsequent statement was voluntary under the circumstances and admissible

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

1. when there is a motion to suppress a statement on the ground that rights’ warnings were not given, an appellate court reviews the military judge’s findings of fact on a clearly-erroneous standard, and conclusions of law de novo