United States v. Castillo, 74 M.J. 160

First Principles: Constitutional Matters: Generally

1. to successfully advance a facial challenge to the constitutional validity of a statute or regulation, the challenger must establish that no set of circumstances exists under which the regulation would be valid

First Principles: Constitutional Matters: Confessions

1. in pertinent part, the Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself; this protection addresses real and appreciable, and not merely imaginary and unsubstantial, hazards of self-incrimination; to qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled

Core Criminal Law Subjects: Crimes: Article 92 - Failure to Obey Order or Regulation Pre-2019 offenses

1. to successfully advance a facial challenge to the constitutional validity of a statute or regulation, the challenger must establish that no set of circumstances exists under which the regulation would be valid
2. a naval instruction that requires self-reporting of arrests by civilian authorities, and prohibits commanders from taking disciplinary action regarding the underlying offense for which the servicemember was arrested, unless that disciplinary action is based on independent evidence, does not conflict with superior regulatory authority and appellant in this case has failed to show that it facially compels self-incrimination in violation of the Fifth Amendment to the Constitution; the factual report of an arrest, accompanied by the safeguards against further questioning or prosecution contained in the service instruction, does not present a real and appreciable hazard of self-incrimination; the mere fact of an arrest is a matter of public record and the reporting requirement prohibits commanders from imposing disciplinary action on the basis of the underlying arrested offense, unless such disciplinary action is based solely on evidence derived independently of the self-report; furthermore, the instruction serves a regulatory or administrative purpose where disclosure is required to monitor and maintain the personnel readiness, welfare, safety, and deployability of the force, and it does not target any highly selective group inherently suspect of criminal activities, but rather applies to all members of the Navy
3. in determining whether the intent in the drafting a regulation was essentially regulatory or punitive, seven factors are instructive: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it operates only upon a finding of scienter; (4) whether it will serve the traditional aims of punishment, i.e., retribution and deterrence; (5) whether it applies to behavior that is already a crime; (6) whether it serves an alternative (i.e., noncriminal) purpose; and (7) whether it is excessive in relation to that purpose; the core inquiry is not a formulaic application of multifactor tests, but rather consideration of whether the challenged provision is grounded in a valid regulatory, as opposed to punitive, governmental purpose

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

1. in pertinent part, the Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself; this protection addresses real and appreciable, and not merely imaginary and unsubstantial, hazards of self-incrimination; to qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled

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

1. to successfully advance a facial challenge to the constitutional validity of a statute or regulation, the challenger must establish that no set of circumstances exists under which the regulation would be valid
2. interpretation of a service instruction is a question of law that is reviewed by an appellate court de novo
3. questions of constitutional law are reviewed by an appellate court de novo, including a question of whether a self-reporting requirement of civilian arrests conflicts with the Fifth Amendment privilege against self-incrimination

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Regulations

1. to successfully advance a facial challenge to the constitutional validity of a statute or regulation, the challenger must establish that no set of circumstances exists under which the regulation would be valid
2. a naval instruction that requires self-reporting of arrests by civilian authorities, and prohibits commanders from taking disciplinary action regarding the underlying offense for which the servicemember was arrested, unless that disciplinary action is based on independent evidence, does not conflict with superior regulatory authority and appellant in this case has failed to show that it facially compels self-incrimination in violation of the Fifth Amendment to the Constitution; the factual report of an arrest, accompanied by the safeguards against further questioning or prosecution contained in the service instruction, does not present a real and appreciable hazard of self-incrimination; the mere fact of an arrest is a matter of public record and the reporting requirement prohibits commanders from imposing disciplinary action on the basis of the underlying arrested offense, unless such disciplinary action is based solely on evidence derived independently of the self-report; furthermore, the instruction serves a regulatory or administrative purpose where disclosure is required to monitor and maintain the personnel readiness, welfare, safety, and deployability of the force, and it does not target any highly selective group inherently suspect of criminal activities, but rather applies to all members of the Navy
3. in determining whether the intent in the drafting a regulation was essentially regulatory or punitive, seven factors are instructive: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it operates only upon a finding of scienter; (4) whether it will serve the traditional aims of punishment, i.e., retribution and deterrence; (5) whether it applies to behavior that is already a crime; (6) whether it serves an alternative (i.e., noncriminal) purpose; and (7) whether it is excessive in relation to that purpose; the core inquiry is not a formulaic application of multifactor tests, but rather consideration of whether the challenged provision is grounded in a valid regulatory, as opposed to punitive, governmental purpose