U.S. v. Jones, 73 M.J. 357

Military Justice Personnel: Military Judge: Discretion

1. on a mixed question of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect
2. in this case, the military judge did not abuse his discretion in admitting appellant’s statement about a recent burglary to an infantryman when he concluded that the infantryman was not acting and could not reasonably be considered by appellant to be acting in an official law enforcement or disciplinary capacity when he questioned appellant; as a result, Article 31(b), UCMJ, warnings were not required, and appellant’s statement was properly admitted; although at the time of questioning, the infantryman was also serving as a military police augmentee, was involved in the investigation of the burglary, and immediately reported the results of his conversation with appellant to his chain of command, he had a personal motivation for questioning appellant based on a prior interaction, he did not exercise a disciplinary role with respect to appellant, he had limited law enforcement authority and responsibilities as an MP augmentee, he was not permitted to perform MP duties without his MP partner present or any MP functions when he was off-duty, he was not authorized to fill out rights waiver forms, take sworn statements, or question suspects, he was treated by the MPs as a registered source, signifying that he was not acting as an official MP augmentee at the time of the questioning, and he questioned appellant outside the presence of his MP partner and while he was off-duty; furthermore, a reasonable person in appellant’s position could not have considered the infantryman to be acting in an official law enforcement or disciplinary capacity where appellant was an actual MP who seemingly understood the limited authorities and responsibilities of an MP augmentee, where at the time of the questioning, the infantryman was junior in rank to appellant, where appellant had earlier asked the infantryman to join him in committing the burglary, and where appellant, not the infantryman, locked the housing unit door during the questioning

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

1. because of the effect of superior rank or official position upon one subject to military law, the mere asking of a question under certain circumstances is the equivalent of a command

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

1. Congress passed Article 31(b) to provide servicepersons with a protection which, at the time of the Uniform Code's enactment, was almost unknown in American courts, but which was deemed necessary because of subtle pressures which existed in military society; the Article 31(b) warning requirement provides members of the armed forces with statutory assurance that the standard military requirement for a full and complete response to a superior’s inquiry does not apply in a situation when the privilege against self-incrimination may be invoked; under Article 31(b), UCMJ, no person subject to the UCMJ may interrogate or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial
2. under Article 31(b), UCMJ, warnings are required when (1) a person subject to the UCMJ, to include “a knowing agent,” such as a civilian law enforcement agent working for military criminal investigatory services, (2) interrogates or requests any statement, (3) from an accused or person suspected of an offense, and (4) the statements regard the offense of which the person questioned is accused or suspected
3. although Article 31(b), UCMJ, seems straightforward, were its textual predicates applied literally, Article 31(b) would potentially have a comprehensive and unintended reach into all aspects of military life and mission; because the mandatory exclusion of statements taken in violation of Article 31, UCMJ, is a severe remedy, the second textual predicates - interrogation and the taking of ‘any’ statement – have been interpreted in context, and in a manner consistent with Congress’s intent that the article protect the constitutional right against self-incrimination
4. under Article 31(b)’s second requirement, rights warnings are required if the person conducting the questioning is participating in an official law enforcement or disciplinary investigation or inquiry, as opposed to having a personal motivation for the inquiry; this 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; this second determination is judged by reference to a reasonable man in the suspect’s position
5. on its face, the objective standard of Article 31(b)’s second requirement is potentially problematic in relation to the use of undercover officers or informants who clearly act in an official capacity; judicial discretion, however, indicates a necessity for denying Article 31(b)’s application to a situation not considered by its framers, and wholly unrelated to the reasons for its creation; because undercover officials and informants do not usually place the accused in a position where a reasonable person in the accused’s position would feel compelled to reply to questions, this same logic dictates that Article 31(b), UCMJ, would not apply in those situations; this conclusion is consistent with the Supreme Court’s undercover agent exception in the Miranda v. Arizona (384 US 436 (1966)) context
6. United States v. Duga (10 MJ 206 (CMA 1981)) purported to set forth a two-part test that required Article 31, UCMJ, warnings only where the person questioning was acting in an official capacity and the person questioned perceived that the inquiry involved more than a casual conversation; the CAAF now expressly rejects the second, subjective, prong of the Duga test, which has been eroded by more recent cases articulating an objective test
7. in this case, the military judge did not abuse his discretion in admitting appellant’s statement about a recent burglary to an infantryman when he concluded that the infantryman was not acting and could not reasonably be considered by appellant to be acting in an official law enforcement or disciplinary capacity when he questioned appellant; as a result, Article 31(b), UCMJ, warnings were not required, and appellant’s statement was properly admitted; although at the time of questioning, the infantryman was also serving as a military police augmentee, was involved in the investigation of the burglary, and immediately reported the results of his conversation with appellant to his chain of command, he had a personal motivation for questioning appellant based on a prior interaction, he did not exercise a disciplinary role with respect to appellant, he had limited law enforcement authority and responsibilities as an MP augmentee, he was not permitted to perform MP duties without his MP partner present or any MP functions when he was off-duty, he was not authorized to fill out rights waiver forms, take sworn statements, or question suspects, he was treated by the MPs as a registered source, signifying that he was not acting as an official MP augmentee at the time of the questioning, and he questioned appellant outside the presence of his MP partner and while he was off-duty; furthermore, a reasonable person in appellant’s position could not have considered the infantryman to be acting in an official law enforcement or disciplinary capacity where appellant was an actual MP who seemingly understood the limited authorities and responsibilities of an MP augmentee, where at the time of the questioning, the infantryman was junior in rank to appellant, where appellant had earlier asked the infantryman to join him in committing the burglary, and where appellant, not the infantryman, locked the housing unit door during the questioning

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Self-incrimination

1. the Article 31(b) warning requirement provides members of the armed forces with statutory assurance that the standard military requirement for a full and complete response to a superior’s inquiry does not apply in a situation when the privilege against self-incrimination may be invoked

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

1. the Article 31(b) warning requirement provides members of the armed forces with statutory assurance that the standard military requirement for a full and complete response to a superior’s inquiry does not apply in a situation when the privilege against self-incrimination may be invoked; under Article 31(b), UCMJ, no person subject to the UCMJ may interrogate or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial
2. under Article 31(b), UCMJ, warnings are required when (1) a person subject to the UCMJ, to include “a knowing agent,” such as a civilian law enforcement agent working for military criminal investigatory services, (2) interrogates or requests any statement, (3) from an accused or person suspected of an offense, and (4) the statements regard the offense of which the person questioned is accused or suspected
3. under Article 31(b)’s second requirement, rights warnings are required if the person conducting the questioning is participating in an official law enforcement or disciplinary investigation or inquiry, as opposed to having a personal motivation for the inquiry; this 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; this second determination is judged by reference to a reasonable man in the suspect’s position
4. on its face, the objective standard of Article 31(b)’s second requirement is potentially problematic in relation to the use of undercover officers or informants who clearly act in an official capacity; judicial discretion, however, indicates a necessity for denying Article 31(b)’s application to a situation not considered by its framers, and wholly unrelated to the reasons for its creation; because undercover officials and informants do not usually place the accused in a position where a reasonable person in the accused’s position would feel compelled to reply to questions, this same logic dictates that Article 31(b), UCMJ, would not apply in those situations; this conclusion is consistent with the Supreme Court’s undercover agent exception in the Miranda v. Arizona (384 US 436 (1966)) context
5. US v. Duga (10 MJ 206 (CMA 1981)) purported to set forth a two-part test that required Article 31, UCMJ, warnings only where the person questioning was acting in an official capacity and the person questioned perceived that the inquiry involved more than a casual conversation; the CAAF now expressly rejects the second, subjective, prong of the Duga test, which has been eroded by more recent cases articulating an objective test
6. in this case, the military judge did not abuse his discretion in admitting appellant’s statement about a recent burglary to an infantryman when he concluded that the infantryman was not acting and could not reasonably be considered by appellant to be acting in an official law enforcement or disciplinary capacity when he questioned appellant; as a result, Article 31(b), UCMJ, warnings were not required, and appellant’s statement was properly admitted; although at the time of questioning, the infantryman was also serving as a military police augmentee, was involved in the investigation of the burglary, and immediately reported the results of his conversation with appellant to his chain of command, he had a personal motivation for questioning appellant based on a prior interaction, he did not exercise a disciplinary role with respect to appellant, he had limited law enforcement authority and responsibilities as an MP augmentee, he was not permitted to perform MP duties without his MP partner present or any MP functions when he was off-duty, he was not authorized to fill out rights waiver forms, take sworn statements, or question suspects, he was treated by the MPs as a registered source, signifying that he was not acting as an official MP augmentee at the time of the questioning, and he questioned appellant outside the presence of his MP partner and while he was off-duty; furthermore, a reasonable person in appellant’s position could not have considered the infantryman to be acting in an official law enforcement or disciplinary capacity where appellant was an actual MP who seemingly understood the limited authorities and responsibilities of an MP augmentee, where at the time of the questioning, the infantryman was junior in rank to appellant, where appellant had earlier asked the infantryman to join him in committing the burglary, and where appellant, not the infantryman, locked the housing unit door during the questioning

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

1. an appellate court reviews a military judge’s ruling on a motion to suppress for an abuse of discretion; the abuse of discretion standard is a strict one, calling for more than a mere difference of opinion
2. 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 it reviews conclusions of law de novo; on a mixed question of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect
3. whether a questioner was acting or could reasonably be considered to be acting in either an official law enforcement or disciplinary capacity is a question of law that is reviewed by an appellate court de novo