Bless me Father for I have sinned: a year in self-incrimination law

Introduction

Mark Twain once said, "Supposing is good, but finding out is better." (1) While this maxim may be true regarding most aspects of life, it falls short when applied to the law. Regarding the law of self-incrimination, finding out is not only better than supposing, it is essential because of the adverse consequences that can occur when law enforcement officials and trial participants do not learn and heed the rules. These adverse consequences can destroy a government's carefully crafted case and have conclusive effects on a trial's outcome. For a defense counsel, failure to identify and address self-incrimination issues can result in injustice for their clients, followed by claims of ineffective assistance of counsel. Finally, military judges who either miss such issues or misapply the law run the risk of reversal on appeal.

To understand and apply this year's court opinions, the practitioner must first have a rudimentary knowledge of the complex area of self-incrimination law. This complexity stems from the fact that self-incrimination encompasses four separate sources of law. Each source of law requires distinct triggering events before its protections apply. Each source offers different procedural safeguards and remedies for non-compliance. Failure to understand these basic distinctions will cause a practitioner to miss the significance of--or misapply--a case's holding.

This article first overviews self-incrimination law to give the reader a basic mental framework, and to give the new judicial opinions their proper context. The article then proceeds to review five of the more significant cases the Court of Appeals for the Armed Forces (CAAF) decided during the past year. Of these five cases, one case addresses the voluntariness doctrine, two cases address the issue of who must read Article 31(b) rights warnings, one case addresses both of these previously mentioned sources of law, and the last case centers around mentioning the accused's silence at trial. Of the three cases that address Article 31, two of them cover new ground regarding who must read these warnings; one case deals with a chaplain, and the other deals with a legal assistance attorney. Although these cases differ as to the source of law applied, as well as when the issue arose during the interrogation process, all of them contain important lessons for practitioners.

Self-Incrimination Law

The body of law known as self-incrimination law encompasses the Fifth Amendment, (2) the Sixth Amendment, (3) and the voluntariness doctrine. (4) These protections are common to both the civilian and military communities. The statutory protections of Article 31, Uniform Code of Military Justice (UCMJ), however, are unique to the military. (5)

Fifth Amendment & Miranda

Of these four sources of self-incrimination law, the Fifth Amendment probably enjoys the greatest name recognition. Although the Fifth Amendment has been in existence since the inception of the Constitution, its familiar procedural protections did not come into existence until 1966, with the release of the landmark case of Miranda v. Arizona. (6) The goal of Miranda was to establish procedural safeguards to protect individuals from the compulsion to confess in the inherently coercive environment of a police-dominated, incommunicado interrogation. Therefore, the triggering event for the application of Miranda's protections is the onset of a "custodial interrogation." (7) Once Miranda is triggered, police must inform the subject of his rights (1) to remain silent, (2) to be informed that any statement he makes may be used as evidence against him, and (3) to the presence of an attorney during the questioning. (8) In 1967, the Court of Military Appeals (COMA) ruled that Miranda's protections also apply to military interrogations. (9)

Sixth Amendment

Like Miranda, the Sixth Amendment provides the right to the assistance of counsel. Although Miranda provides counsel to assist an individual during exposure to the coercive environment of a custodial interrogation, the Sixth Amendment provides a defendant with the assistance of counsel for his defense in a criminal prosecution. The right to counsel under the Sixth Amendment, therefore, is triggered by the initiation of the adversarial criminal justice process. In the civilian sector, indictment triggers this right. (10) In the military, the preferral of charges triggers this right. (11)

Article 31

Long before civilians enjoyed the protections of Miranda, members of the armed forces benefited from the procedural safeguards of Article 31 (b). (12) Congress enacted Article 31 with the hope that it would work to dispel service members' inherent compulsion to respond to questioning from superiors in rank or position. (13) Throughout the years, the triggering requirements for Article 31(b) rights have been influenced not only by the plain text of the statute and legislative intent, but also by evolving judicial interpretations. (14) What has emerged is that when a suspect or an accused is questioned by a person subject to the UCMJ who is acting in an official capacity for law enforcement or disciplinary purposes--and is perceived as such by the suspect or accused--the questioner must read the suspect his Article 31(b) rights. These warnings include the right (1) to be informed of the nature of the accusation, (2) to remain silent, and (3) to be informed that any statement made may be used as evidence against the declarant. (15) While the rights of Article 31(b) and Miranda are similar, a quick comparison between the two highlights key differences. First, Miranda gives an individual the right to counsel, whereas Article 31(b) does not. Conversely, Article 31(b) requires that the individual be informed of the accusation against him, whereas there is no similar requirement under Miranda. (16)