U.S. v. Cohen, 63 M.J. 45

Core Criminal Law Subjects: Crimes: Article 134 -- Indecent Acts with Another Pre-2019 offenses

1. under military case law, photographing or filming sexual acts is an offense punishable under Article 134 of the UCMJ

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

1. 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
2. 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
3. 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
4. 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
5. 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
6. 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
7. 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
8. 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
9. 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

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the military judge’s error in admitting unwarned statements that appellant made to the IG regarding his taking photographs of a rape incident in a hotel did not prejudice appellant where eyewitnesses placed appellant in the hotel room, the prosecution presented the photographs taken by appellant during the incident, and none of what appellant told the IG implicated appellant in the indecent act he was convicted of committing

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