U.S. v. Nelson, 82 M.J. 251

First Principles: Constitutional Matters: Confessions

1. a servicemember’s protection against compulsory self-incrimination is unparalleled in the civilian sector because this fundamental right is protected by both the Fifth Amendment and Article 31, UCMJ
2. the Fifth Amendment guarantees that no person shall be compelled in any criminal case to be a witness against himself; similarly, Article 31(a), UCMJ, prohibits individuals subject to the UCMJ from compelling any person to incriminate himself or to answer any question the answer to which may tend to incriminate him; importantly, Article 31, like the Fifth Amendment, focuses on testimonial compulsion
3. to qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled
4. if what is requested from an accused is not testimonial, then the Fifth Amendment privilege against self-crimination is not implicated; similarly, if what is requested is not incriminating, then the Fifth Amendment also is not implicated
5. the voluntariness of a confession turns on whether an accused’s will has been overborne, and in determining the voluntariness of a confession, an appellate court examines the totality of all the surrounding circumstances by applying a two-part test, looking to both the personal characteristics of the accused as well as the circumstances of the interrogation; regarding personal characteristics, some of the factors taken into account have included the youth of the accused, his lack of education, or his low intelligence; regarding the circumstances of the interrogation, some of the factors taken into account have included the lack of any advice to the accused of his constitutional rights, 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; there is no requirement that the prosecution prove as part of its initial burden that the accused knew that he had a right to refuse to answer the questions that were put to him

Military Justice Personnel: Military Judge: Discretion

1. an appellate court reviews a military judge’s ruling on a motion to suppress for an abuse of discretion and considers the evidence in the light most favorable to the party that prevailed at trial; 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 abuse did not abuse his discretion in denying Appellant’s motion to suppress and ruling that appellant voluntarily entered his cell phone passcode where (1) appellant, who was 25-years-old, had been a Marine for four years, and was articulate with the ability to communicate, was not somehow peculiarly susceptible to coercion, (2) during his initial interview with law enforcement, not only did appellant technically waive his Miranda/Article 31, UCMJ, rights, he did so forthrightly and unambiguously and demonstrated his willingness to answer questions, and he repeatedly demonstrated his recognition that he could decline to provide the passcode to his phone, (3) although appellant cites the fact that he was asked and refused five times to provide the investigator with the passcode in his initial interview, he does not provide any basis for a conclusion that this initial interview was coercive -- he did not invoke his right to counsel and did not seek to depart from the interview; (4) during appellant’s second interview with law enforcement, the investigator’s tone and demeanor remained professional at all times, the encounter lasted only minutes, the investigator did not engage in threats, abuse, or coercion in order to get appellant to enter the passcode, and the investigator was not obligated to read appellant his rights again; (5) when appellant stated that he had no choice but to enter the passcode, he did not wait for a response by the investigator before unlocking his phone, and the investigator was under no obligation to correct appellant’s misimpression, and (6) by informing appellant that he had obtained a search authorization, the investigator did not overbear appellant’s will where he did, in fact, have a search authorization

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

1. a servicemember’s protection against compulsory self-incrimination is unparalleled in the civilian sector because this fundamental right is protected by both the Fifth Amendment and Article 31, UCMJ
2. the Fifth Amendment guarantees that no person shall be compelled in any criminal case to be a witness against himself; similarly, Article 31(a), UCMJ, prohibits individuals subject to the UCMJ from compelling any person to incriminate himself or to answer any question the answer to which may tend to incriminate him; importantly, Article 31, like the Fifth Amendment, focuses on testimonial compulsion
3. the general rule is that if Miranda/Article 31 warnings are given properly the first time and there is a continuance of the interrogation, separate warnings are not needed; this principle holds true even if the interrogation is continued one day later

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Motions to suppress

1. an appellate court reviews a military judge’s ruling on a motion to suppress for an abuse of discretion and considers the evidence in the light most favorable to the party that prevailed at trial; 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 abuse did not abuse his discretion in denying Appellant’s motion to suppress and ruling that appellant voluntarily entered his cell phone passcode where (1) appellant, who was 25-years-old, had been a Marine for four years, and was articulate with the ability to communicate, was not somehow peculiarly susceptible to coercion, (2) during his initial interview with law enforcement, not only did appellant technically waive his Miranda/Article 31, UCMJ, rights, he did so forthrightly and unambiguously and demonstrated his willingness to answer questions, and he repeatedly demonstrated his recognition that he could decline to provide the passcode to his phone, (3) although appellant cites the fact that he was asked and refused five times to provide the investigator with the passcode in his initial interview, he does not provide any basis for a conclusion that this initial interview was coercive -- he did not invoke his right to counsel and did not seek to depart from the interview; (4) during appellant’s second interview with law enforcement, the investigator’s tone and demeanor remained professional at all times, the encounter lasted only minutes, the investigator did not engage in threats, abuse, or coercion in order to get appellant to enter the passcode, and the investigator was not obligated to read appellant his rights again; (5) when appellant stated that he had no choice but to enter the passcode, he did not wait for a response by the investigator before unlocking his phone, and the investigator was under no obligation to correct appellant’s misimpression, and (6) by informing appellant that he had obtained a search authorization, the investigator did not overbear appellant’s will where he did, in fact, have a search authorization

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

1. a servicemember’s protection against compulsory self-incrimination is unparalleled in the civilian sector because this fundamental right is protected by both the Fifth Amendment and Article 31, UCMJ
2. the Fifth Amendment guarantees that no person shall be compelled in any criminal case to be a witness against himself; similarly, Article 31(a), UCMJ, prohibits individuals subject to the UCMJ from compelling any person to incriminate himself or to answer any question the answer to which may tend to incriminate him; importantly, Article 31, like the Fifth Amendment, focuses on testimonial compulsion
3. to qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled
4. if what is requested from an accused is not testimonial, then the Fifth Amendment privilege against self-crimination is not implicated; similarly, if what is requested is not incriminating, then the Fifth Amendment also is not implicated

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

1. the voluntariness of a confession is a question of law that an appellate court reviews de novo
2. the voluntariness of a confession turns on whether an accused’s will has been overborne, and in determining the voluntariness of a confession, an appellate court examines the totality of all the surrounding circumstances by applying a two-part test, looking to both the personal characteristics of the accused as well as the circumstances of the interrogation; regarding personal characteristics, some of the factors taken into account have included the youth of the accused, his lack of education, or his low intelligence; regarding the circumstances of the interrogation, some of the factors taken into account have included the lack of any advice to the accused of his constitutional rights, 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; there is no requirement that the prosecution prove as part of its initial burden that the accused knew that he had a right to refuse to answer the questions that were put to him
3. in this case, the military judge abuse did not abuse his discretion in denying Appellant’s motion to suppress and ruling that appellant voluntarily entered his cell phone passcode where (1) appellant, who was 25-years-old, had been a Marine for four years, and was articulate with the ability to communicate, was not somehow peculiarly susceptible to coercion, (2) during his initial interview with law enforcement, not only did appellant technically waive his Miranda/Article 31, UCMJ, rights, he did so forthrightly and unambiguously and demonstrated his willingness to answer questions, and he repeatedly demonstrated his recognition that he could decline to provide the passcode to his phone, (3) although appellant cites the fact that he was asked and refused five times to provide the investigator with the passcode in his initial interview, he does not provide any basis for a conclusion that this initial interview was coercive -- he did not invoke his right to counsel and did not seek to depart from the interview; (4) during appellant’s second interview with law enforcement, the investigator’s tone and demeanor remained professional at all times, the encounter lasted only minutes, the investigator did not engage in threats, abuse, or coercion in order to get appellant to enter the passcode, and the investigator was not obligated to read appellant his rights again; (5) when appellant stated that he had no choice but to enter the passcode, he did not wait for a response by the investigator before unlocking his phone, and the investigator was under no obligation to correct appellant’s misimpression, and (6) by informing appellant that he had obtained a search authorization, the investigator did not overbear appellant’s will where he did, in fact, have a search authorization

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

1. the general rule is that if Miranda/Article 31 warnings are given properly the first time and there is a continuance of the interrogation, separate warnings are not needed; this principle holds true even if the interrogation is continued one day later

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 and considers the evidence in the light most favorable to the party that prevailed at trial; a military judge abuses his discretion if ‘his findings of fact are clearly erroneous or his conclusions of law are incorrect
2. the voluntariness of a confession is a question of law that an appellate court reviews de novo
3. the voluntariness of a confession turns on whether an accused’s will has been overborne, and in determining the voluntariness of a confession, an appellate court examines the totality of all the surrounding circumstances by applying a two-part test, looking to both the personal characteristics of the accused as well as the circumstances of the interrogation; regarding personal characteristics, some of the factors taken into account have included the youth of the accused, his lack of education, or his low intelligence; regarding the circumstances of the interrogation, some of the factors taken into account have included the lack of any advice to the accused of his constitutional rights, 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; there is no requirement that the prosecution prove as part of its initial burden that the accused knew that he had a right to refuse to answer the questions that were put to him