U.S. v. Flanner, 85 M.J. 163

First Principles: Constitutional Matters: Confessions

1. the Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself; the Supreme Court has interpreted the Fifth Amendment privilege against self-incrimination to encompass two distinct rights: the right to silence and the right to counsel specifically during pretrial questioning

First Principles: Constitutional Matters: Due Process

1. servicemembers do not enjoy due process protections above and beyond the panoply of rights provided to them by the plain text of the Constitution, the UCMJ, and the MCM

First Principles: Constitutional Matters: Right to Counsel

1. the Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself; the Supreme Court has interpreted the Fifth Amendment privilege against self-incrimination to encompass two distinct rights: the right to silence and the right to counsel specifically during pretrial questioning
2. in accordance with Miranda (Miranda v. Arizona, 384 US 436 (1966)), if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent, and has the right to consult with a lawyer and to have the lawyer with him during interrogation
3. the Fifth Amendment right to counsel applies only during custodial interrogations; and to be considered in custody for purposes of Miranda (Miranda v. Arizona, 384 US 436 (1966)), a reasonable person in the accused's position must have believed he or she was restrained in a formal arrest or there was a restraint on freedom of movement of the degree associated with a formal arrest
4. to determine whether an individual was subjected to a custodial interrogation for purposes of Miranda (Miranda v. Arizona, 384 US 436 (1966)), courts consider: (1) whether the person appeared for questioning voluntarily, (2) the location and atmosphere of the place in which questioning occurred, (3) the length of the questioning, (4) the number of law enforcement officers present at the scene, and (5) the degree of physical restraint placed upon the suspect
5. in this case, the accused's second interview with two law enforcement agents was not a custodial interrogation, and therefore, he had no Fifth Amendment (or MRE 305(c)(2)) right to counsel during that interview where (1) the accused initiated the interview and voluntarily appeared at the scheduled time, (2) although the agents conducted the interview at a law enforcement office and the accused knew he was a suspect, the interview did not become custodial simply because the questioning took place in a law enforcement office or because the questioned person is one whom the police suspect, (3) the accused joked and laughed with the agents over the course of about two and a half hours, and (4) the accused acknowledged that he could stop the interview at any time, and when questioning concluded and he had nothing more to say, he left; under these circumstances, the atmosphere of the interview would have made it transparent to a reasonable person in the accused's position that he was not subject to a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest; the interview did not contain the inherently compelling pressures with which Miranda (Miranda v. Arizona, 384 US 436 (1966)) was concerned
6. the accused's invocation of his Fifth Amendment right to counsel in his initial law enforcement custodial interrogation did not reasonably carry over to the second non-custodial interview where the law enforcement agents terminated the first interview as soon as the accused indicated that he wanted counsel to be present during questioning and four months intervened before the accused contacted the agents to schedule a second interview; the Fifth Amendment right to counsel did not extend beyond the bounds of the custodial interrogation
7. a person's Sixth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him
8. in the military, the Sixth Amendment right to counsel attaches upon preferral of charges
9. in this case, because no charges had been preferred at the time of the accused's second interview, he had no Sixth Amendment right to counsel during that interview
10. in this case, as a servicemember suspected of an offense subject to questioning by law enforcement in a second non-custodial interview prior to any preferral of charges, the accused was entitled to the protections afforded by Article 31, UCMJ, that is (1) to be informed of the nature of the accusation against him, (2) to be advised of his right to remain silent, and (3) that any statement made by him may be used as evidence against him in a trial by court-martial; however, those protections did not include a right to counsel

Military Justice Personnel: Defense Function: Right to Counsel

1. the Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself; the Supreme Court has interpreted the Fifth Amendment privilege against self-incrimination to encompass two distinct rights: the right to silence and the right to counsel specifically during pretrial questioning
2. in accordance with Miranda (Miranda v. Arizona, 384 US 436 (1966)), if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent, and has the right to consult with a lawyer and to have the lawyer with him during interrogation
3. the Fifth Amendment right to counsel applies only during custodial interrogations; and to be considered in custody for purposes of Miranda (Miranda v. Arizona, 384 US 436 (1966)), a reasonable person in the accused's position must have believed he or she was restrained in a formal arrest or there was a restraint on freedom of movement of the degree associated with a formal arrest
4. to determine whether an individual was subjected to a custodial interrogation for purposes of Miranda (Miranda v. Arizona, 384 US 436 (1966)), courts consider: (1) whether the person appeared for questioning voluntarily, (2) the location and atmosphere of the place in which questioning occurred, (3) the length of the questioning, (4) the number of law enforcement officers present at the scene, and (5) the degree of physical restraint placed upon the suspect
5. in this case, the accused's second interview with two law enforcement agents was not a custodial interrogation, and therefore, he had no Fifth Amendment (or MRE 305(c)(2)) right to counsel during that interview where (1) the accused initiated the interview and voluntarily appeared at the scheduled time, (2) although the agents conducted the interview at a law enforcement office and the accused knew he was a suspect, the interview did not become custodial simply because the questioning took place in a law enforcement office or because the questioned person was one whom the police suspected, (3) the accused joked and laughed with the agents over the course of about two and a half hours, and (4) the accused acknowledged that he could stop the interview at any time, and when questioning concluded and he had nothing more to say, he left; under these circumstances, the atmosphere of the interview would have made it transparent to a reasonable person in the accused's position that he was not subject to a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest; the interview did not contain the inherently compelling pressures with which Miranda (Miranda v. Arizona, 384 US 436 (1966)) was concerned
6. the accused's invocation of his Fifth Amendment right to counsel in his initial law enforcement custodial interrogation did not reasonably carry over to the second non-custodial interview where the law enforcement agents terminated the first interview as soon as the accused indicated that he wanted counsel to be present during questioning and four months intervened before the accused contacted the agents to schedule a second interview; the Fifth Amendment right to counsel did not extend beyond the bounds of the custodial interrogation
7. a person's Sixth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him
8. in the military, the Sixth Amendment right to counsel attaches upon preferral of charges
9. in this case, because no charges had been preferred at the time of the accused's second interview, he had no Sixth Amendment right to counsel during that interview
10. in this case, as a servicemember suspected of an offense subject to questioning by law enforcement in a second non-custodial interview prior to any preferral of charges, the accused was entitled to the protections afforded by Article 31, UCMJ, that is (1) to be informed of the nature of the accusation against him, (2) to be advised of his right to remain silent, and (3) that any statement made by him may be used as evidence against him in a trial by court-martial; however, those protections did not include a right to counsel
11. in this case, at the time of the accused's second interview with law enforcement, because he was not in pretrial confinement or had been arrested, no charges had been preferred, an Article 32, UCMJ, investigating officer had not been appointed, and no administrative separation/board of inquiry package had been served, under Marine Corps policy, the accused was not required to be detailed military counsel

Military Justice Personnel: Military Judge: Discretion

1. in this case, the military judge abused her discretion in suppressing the accused's second interview with law enforcement agents where the accused did not have a right to appointed military defense counsel pursuant to the Fifth Amendment, as implemented by MRE 305, by Article 31(b), UCMJ, or by Marine Corps policy; none of these sources gave the accused a right to appointed military defense counsel during a noncustodial, pre-preferral, self-scheduled interview; the military judge erred (1) in assuming without deciding that the accused had a right to appointed military defense counsel during the second interview, and (2) in concluding that the accused was mistaken in believing he could not be appointed military defense counsel until charges were preferred

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

1. Article 31(b), UCMJ, is a statutory precursor to Miranda warnings (Miranda v. Arizona, 384 US 436 (1966)) that implements the Article 31(a), UCMJ, privilege against compulsory self-incrimination
2. 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; while the Fifth Amendment guarantees that no person shall be compelled to be a witness against himself in a criminal case, Article 31(a), UCMJ, guarantees that no person subject to the UCMJ shall compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him
3. the purpose of the Article 31(b), UCMJ, warning requirement is to provide 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; to this end, Article 31(b), UCMJ, rights are in certain respects more extensive than those provided under the Fifth Amendment; specifically, Article 31(b), UCMJ, warnings must be given to anyone suspected of an offense while Miranda warnings (Miranda v. Arizona, 384 US 436 (1966)) only need to be given to those subject to custodial interrogation; in another respect, Article 31(b), UCMJ, warnings are narrower than Miranda warnings; Miranda requires a warning about the rights to consult with counsel and to have counsel present during questioning while Article 31(b), UCMJ, on the other hand, is silent as to a servicemember's rights to counsel
4. in this case, as a servicemember suspected of an offense subject to questioning by law enforcement in a non-custodial second interview, the accused was entitled to the protections afforded by Article 31, UCMJ, that is (1) to be informed of the nature of the accusation against him, (2) to be advised of his right to remain silent, and (3) that any statement made by him may be used as evidence against him in a trial by court-martial; however, those protections did not include a right to counsel

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Invocation of Rights

1. in accordance with Miranda (Miranda v. Arizona, 384 US 436 (1966)), if a person in custody indicates that he wants an attorney, the interrogation must cease until an attorney is present
2. as with the Fifth Amendment right to counsel during a custodial interrogation, if a person invokes his or her right to counsel under MRE 305(c)(2), then questioning must cease until counsel is present

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

1. the Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself; the Supreme Court has interpreted the Fifth Amendment privilege against self-incrimination to encompass two distinct rights: the right to silence and the right to counsel specifically during pretrial questioning
2. Article 31(b), UCMJ, is a statutory precursor to Miranda warnings (Miranda v. Arizona, 384 US 436 (1966)) that implements the Article 31(a), UCMJ, privilege against compulsory self-incrimination
3. 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; while the Fifth Amendment guarantees that no person shall be compelled to be a witness against himself in a criminal case, Article 31(a), UCMJ, guarantees that no person subject to the UCMJ shall compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him
4. the purpose of the Article 31(b), UCMJ, warning requirement is to provide 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; to this end, Article 31(b), UCMJ, rights are in certain respects more extensive than those provided under the Fifth Amendment; specifically, Article 31(b), UCMJ, warnings must be given to anyone suspected of an offense while Miranda warnings (Miranda v. Arizona, 384 US 436 (1966)) only need to be given to those subject to custodial interrogation; in another respect, Article 31(b), UCMJ, warnings are narrower than Miranda warnings; Miranda requires a warning about the rights to consult with counsel and to have counsel present during questioning while Article 31(b), UCMJ, on the other hand, is silent as to a servicemember's rights to counsel
5. in this case, as a servicemember suspected of an offense subject to questioning by law enforcement in a non-custodial second interview, the accused was entitled to the protections afforded by Article 31, UCMJ, that is (1) to be informed of the nature of the accusation against him, (2) to be advised of his right to remain silent, and (3) that any statement made by him may be used as evidence against him in a trial by court-martial; however, those protections did not include a right to counsel

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

1. under MRE 304(a), an involuntary statement from the accused, or any evidence derived therefrom, is inadmissible at trial with the following two exceptions: (1) to impeach by contradiction the in-court testimony of the accused; or (2) in a later prosecution against the accused for perjury, false swearing, or the making of a false official statement; an involuntary statement means a statement obtained in violation of the self-incrimination privilege or Due Process Clause of the Fifth Amendment to the United States Constitution, Article 31, UCMJ, or through the use of coercion, unlawful influence, or unlawful inducement

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

1. in accordance with Miranda (Miranda v. Arizona, 384 US 436 (1966)), if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent, and has the right to consult with a lawyer and to have the lawyer with him during interrogation
2. to determine whether an individual was subjected to a custodial interrogation for purposes of Miranda (Miranda v. Arizona, 384 US 436 (1966)), courts consider: (1) whether the person appeared for questioning voluntarily, (2) the location and atmosphere of the place in which questioning occurred, (3) the length of the questioning, (4) the number of law enforcement officers present at the scene, and (5) the degree of physical restraint placed upon the suspect
3. in this case, the accused's second interview with two law enforcement agents was not a custodial interrogation, and therefore, he had no Fifth Amendment (or MRE 305(c)(2)) right to counsel during that interview where (1) the accused initiated the interview and voluntarily appeared at the scheduled time, (2) although the agents conducted the interview at a law enforcement office and the accused knew he was a suspect, the interview did not become custodial simply because the questioning took place in a law enforcement office or because the questioned person was one whom the police suspected, (3) the accused joked and laughed with the agents over the course of about two and a half hours, and (4) the accused acknowledged that he could stop the interview at any time, and when questioning concluded and he had nothing more to say, he left; under these circumstances, the atmosphere of the interview would have made it transparent to a reasonable person in the accused's position that he was not subject to a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest; the interview did not contain the inherently compelling pressures with which Miranda (Miranda v. Arizona, 384 US 436 (1966)) was concerned
4. the accused's invocation of his Fifth Amendment right to counsel in his initial law enforcement custodial interrogation did not reasonably carry over to the second non-custodial interview where the law enforcement agents terminated the first interview as soon as the accused indicated that he wanted counsel to be present during questioning and four months intervened before the accused contacted the agents to schedule a second interview; the Fifth Amendment right to counsel did not extend beyond the bounds of the custodial interrogation
5. Article 31(b), UCMJ, is a statutory precursor to Miranda warnings (Miranda v. Arizona, 384 US 436 (1966)) that implements the Article 31(a), UCMJ, privilege against compulsory self-incrimination
6. the purpose of the Article 31(b), UCMJ, warning requirement is to provide 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; to this end, Article 31(b), UCMJ, rights are in certain respects more extensive than those provided under the Fifth Amendment; specifically, Article 31(b), UCMJ, warnings must be given to anyone suspected of an offense while Miranda warnings (Miranda v. Arizona, 384 US 436 (1966)) only need to be given to those subject to custodial interrogation; in another respect, Article 31(b), UCMJ, warnings are narrower than Miranda warnings; Miranda requires a warning about the rights to consult with counsel and to have counsel present during questioning while Article 31(b), UCMJ, on the other hand, is silent as to a servicemember's rights to counsel
7. in this case, as a servicemember suspected of an offense subject to questioning by law enforcement, the accused was entitled to the protections afforded by Article 31, UCMJ, that is (1) to be informed of the nature of the accusation against him, (2) to be advised of his right to remain silent, and (3) that any statement made by him may be used as evidence against him in a trial by court-martial; however, those protections did not include a right to counsel

Trial Stages: Writs and Interlocutory Appeals: Article 62 Appeal

1. in an Article 62, UCMJ, appeal, an appellate court directly reviews the military judge's decision and considers the evidence in the light most favorable to the party that prevailed at trial

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

1. in an Article 62, UCMJ, appeal, an appellate court directly reviews the military judge's decision and considers the evidence in the light most favorable to the party that prevailed at trial
2. an appellate court reviews a military judge's ruling on a motion to suppress evidence for an abuse of discretion; an abuse of discretion occurs when the trial court's findings of fact are clearly erroneous or if the court's decision is influenced by an erroneous view of the law
3. (an appellate court reviews de novo any legal conclusions supporting a military judge's suppression ruling, including the question of whether the accused was in custody for purposes of Miranda warnings (Miranda v. Arizona, 384 US 436 (1966))

Miscellaneous Matters: Judicial Review: Generally

1. dicta involves the consideration of abstract and hypothetical situations not before the appellate court; and appellate courts are not bound to follow its own dicta in a prior case in which a point now at issue in another case was not fully debated