U.S. v. Evans, 75 M.J. 302

First Principles: Constitutional Matters: Confessions

1. the protections afforded to servicemembers under Article 31(b), UCMJ, are in many respects broader than the rights afforded to those servicemembers under the Fifth Amendment of the Constitution; accordingly, when an Article 31(b), UCMJ, violation occurs in a particular case, the appropriate test for prejudice depends upon the facts and circumstances presented; if the Article 31(b), UCMJ, violation also implicates the constitutional rights of the accused, then the harmless beyond a reasonable doubt test applies; but if the Article 31(b), UCMJ, violation stands alone as a statutory violation (that is, if the violation does not also present a constitutional violation), then the nonconstitutional test for prejudice spelled out in US v. Kerr, 51 MJ 401, 405 (CAAF 1999) applies
2. Miranda v. Arizona, 384 US 436 (1966) gave rise to a judicially created, prophylactic rule of constitutional law requiring that an accused must be adequately and effectively apprised of his rights; the Fifth Amendment rights captured by Miranda apply to the military, US v. Tempia, 16 CMA 629, 631, 37 CMR 249, 251 (1967), and are distinct from those provided by Article 31(b), UCMJ; notably, Miranda was decided by the Supreme Court in 1966, but the statutory warning requirements for servicemembers first appeared in the aftermath of World War II
3. the mere fact that Article 31(b), UCMJ, rights have a constitutional analog does not change the means by which those rights are ultimately conferred, i.e., by statute, nor does it otherwise convert those statutory rights into constitutional rights; indeed, Article 31(b), UCMJ, derives primarily from statutory enactment, not constitutional adjudication; and Article 31(b), UCMJ, rights are in certain respects more extensive than those provided under the Fifth Amendment; therefore, when it comes to such rights, the Constitution prescribes a floor, not a ceiling; in light of these circumstances, violations of Article 31(b), UCMJ, must be viewed as falling into one of two distinct categories: either (a) purely statutory violations; or (b) statutory violations that also present a constitutional violation; this dichotomy leads to the following determination about the appropriate prejudice test that must be applied in each instance: (a) purely statutory violations must be tested for prejudice under the factors provided in US v. Kerr, 51 MJ 401, 405 (CAAF 1999); and (b) statutory violations that also present a constitutional violation must be tested for prejudice under the harmless beyond a reasonable doubt standard
4. (in the past, CAAF has applied the constitutional test (i.e., the “harmless beyond a reasonable doubt” test) to purely statutory violations under Article 31(b), UCMJ; today, any precedent to the contrary, such as US v. Guyton-Bhatt, 56 MJ 484, 487 (CAAF 2002) and US v. Pittman, 36 MJ 404, 408 (CMA 1993, is hereby abrogated)
5. in the instant case, the facts reflect a statutory violation of Article 31(b), UCMJ, and not a constitutional violation under the Fifth Amendment; first, appellant was not subjected to a custodial interrogation and therefore suffered no violation of his Fifth Amendment rights under Miranda v. Arizona, 384 US 436 (1966); whether a set of facts gives rise to a “custodial interrogation” under Miranda depends upon whether a suspect reasonably believed that his freedom of action was curtailed to a degree associated with formal arrest; in making this determination, courts consider: (1) whether the person appeared for questioning voluntarily; (2) the location and atmosphere of the place in which questioning occurred; and (3) the length of the questioning; the record here demonstrates that appellant’s participation in the questioning was voluntary, the location and atmosphere was a quiet conference room, and although there is little indication as to how long the exchange took, there is no basis upon which to conclude that appellant reasonably believed that his freedom of action was curtailed to a degree associated with formal arrest; as a result, the Article 31(b), UCMJ, violation did not also implicate appellant’s Fifth Amendment rights under Miranda; second, the failure to provide an Article 31(b), UCMJ, warning under the attendant circumstances was not itself so egregious that it prompted any other violation of the Fifth Amendment; although there inarguably exist subtle pressures in military society that are not present in the civilian world, and these pressures, in concert with other, case-specific circumstances, may cause a servicemember who is not in a custodial setting to nonetheless involuntarily inculpate himself, that is not the case here; the totality of the circumstances do not indicate that a servicemember’s will was overborne or that his inculpatory statements were not a product of self-determination; because there was no constitutional violation under the Fifth Amendment, the CCA correctly applied the nonconstitutional test for prejudice

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

1. the protections afforded to servicemembers under Article 31(b), UCMJ, are in many respects broader than the rights afforded to those servicemembers under the Fifth Amendment of the Constitution; accordingly, when an Article 31(b), UCMJ, violation occurs in a particular case, the appropriate test for prejudice depends upon the facts and circumstances presented; if the Article 31(b), UCMJ, violation also implicates the constitutional rights of the accused, then the harmless beyond a reasonable doubt test applies; but if the Article 31(b), UCMJ, violation stands alone as a statutory violation (that is, if the violation does not also present a constitutional violation), then the nonconstitutional test for prejudice spelled out in US v. Kerr, 51 MJ 401, 405 (CAAF 1999) applies
2. Article 31(b), UCMJ, is a statutory precursor to Miranda v. Arizona, 384 US 436 (1966), and implements the Article 31(a), UCMJ, privilege against compulsory self-incrimination; its 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
3. Miranda v. Arizona, 384 US 436 (1966) gave rise to a judicially created, prophylactic rule of constitutional law requiring that an accused must be adequately and effectively apprised of his rights; the Fifth Amendment rights captured by Miranda apply to the military, US v. Tempia, 16 CMA 629, 631, 37 CMR 249, 251 (1967), and are distinct from those provided by Article 31(b), UCMJ; notably, Miranda was decided by the Supreme Court in 1966, but the statutory warning requirements for servicemembers first appeared in the aftermath of World War II
4. the mere fact that Article 31(b), UCMJ, rights have a constitutional analog does not change the means by which those rights are ultimately conferred, i.e., by statute, nor does it otherwise convert those statutory rights into constitutional rights; indeed, Article 31(b), UCMJ, derives primarily from statutory enactment, not constitutional adjudication; and Article 31(b), UCMJ, rights are in certain respects more extensive than those provided under the Fifth Amendment; therefore, when it comes to such rights, the Constitution prescribes a floor, not a ceiling; in light of these circumstances, violations of Article 31(b), UCMJ, must be viewed as falling into one of two distinct categories: either (a) purely statutory violations; or (b) statutory violations that also present a constitutional violation; this dichotomy leads to the following determination about the appropriate prejudice test that must be applied in each instance: (a) purely statutory violations must be tested for prejudice under the factors provided in US v. Kerr, 51 MJ 401, 405 (CAAF 1999); and (b) statutory violations that also present a constitutional violation must be tested for prejudice under the harmless beyond a reasonable doubt standard
5. (in the past, CAAF has applied the constitutional test (i.e., the “harmless beyond a reasonable doubt” test) to purely statutory violations under Article 31(b), UCMJ; today, any precedent to the contrary such as US v. Guyton-Bhatt, 56 MJ 484, 487 (CAAF 2002) and US v. Pittman, 36 MJ 404, 408 (CMA 1993, is hereby abrogated)
6. in the instant case, the facts reflect a statutory violation of Article 31(b), UCMJ, and not a constitutional violation under the Fifth Amendment; first, appellant was not subjected to a custodial interrogation and therefore suffered no violation of his Fifth Amendment rights under Miranda v. Arizona, 384 US 436 (1966); whether a set of facts gives rise to a “custodial interrogation” under Miranda depends upon whether a suspect reasonably believed that his freedom of action was curtailed to a degree associated with formal arrest; in making this determination, courts consider: (1) whether the person appeared for questioning voluntarily; (2) the location and atmosphere of the place in which questioning occurred; and (3) the length of the questioning; the record here demonstrates that appellant’s participation in the questioning was voluntary, the location and atmosphere was a quiet conference room, and although there is little indication as to how long the exchange took, there is no basis upon which to conclude that appellant reasonably believed that his freedom of action was curtailed to a degree associated with formal arrest; as a result, the Article 31(b), UCMJ, violation did not also implicate appellant’s Fifth Amendment rights under Miranda; second, the failure to provide an Article 31(b), UCMJ, warning under the attendant circumstances was not itself so egregious that it prompted any other violation of the Fifth Amendment; although there inarguably exist subtle pressures in military society that are not present in the civilian world, and these pressures, in concert with other, case-specific circumstances, may cause a servicemember who is not in a custodial setting to nonetheless involuntarily inculpate himself, that is not the case here; the totality of the circumstances do not indicate that a servicemember’s will was overborne or that his inculpatory statements were not a product of self-determination; because there was no constitutional violation under the Fifth Amendment, the CCA correctly applied the nonconstitutional test for prejudice

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

1. the protections afforded to servicemembers under Article 31(b), UCMJ, are in many respects broader than the rights afforded to those servicemembers under the Fifth Amendment of the Constitution; accordingly, when an Article 31(b), UCMJ, violation occurs in a particular case, the appropriate test for prejudice depends upon the facts and circumstances presented; if the Article 31(b), UCMJ, violation also implicates the constitutional rights of the accused, then the harmless beyond a reasonable doubt test applies; but if the Article 31(b), UCMJ, violation stands alone as a statutory violation (that is, if the violation does not also present a constitutional violation), then the nonconstitutional test for prejudice spelled out in US v. Kerr, 51 MJ 401, 405 (CAAF 1999) applies
2. what standard of review to apply is a question of law that is reviewed by an appellate court de novo
3. the mere fact that Article 31(b), UCMJ, rights have a constitutional analog does not change the means by which those rights are ultimately conferred, i.e., by statute, nor does it otherwise convert those statutory rights into constitutional rights; indeed, Article 31(b), UCMJ, derives primarily from statutory enactment, not constitutional adjudication; and Article 31(b), UCMJ, rights are in certain respects more extensive than those provided under the Fifth Amendment; therefore, when it comes to such rights, the Constitution prescribes a floor, not a ceiling; in light of these circumstances, violations of Article 31(b), UCMJ, must be viewed as falling into one of two distinct categories: either (a) purely statutory violations; or (b) statutory violations that also present a constitutional violation; this dichotomy leads to the following determination about the appropriate prejudice test that must be applied in each instance: (a) purely statutory violations must be tested for prejudice under the factors provided in US v. Kerr, 51 MJ 401, 405 (CAAF 1999); and (b) statutory violations that also present a constitutional violation must be tested for prejudice under the harmless beyond a reasonable doubt standard