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When the Plain Language is Plainly Wrong

 

Codified Exceptions to Article 31(b), UCMJ

 
 
   
   
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(Credit: istockphoto.com/ilyast)

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Judicial discretion indicates a necessity for denying its application to a situation not considered by its framers, and wholly unrelated to the reasons for its creation.1

Too often, military justice practitioners find themselves in the awkward position of realizing at trial that they have a different understanding from that of the military judge as to the scope of Article 31 of the Uniform Code of Military Justice (UCMJ). This often occurs when the trial counsel attempts to admit a confession or other statement of the accused and is told that it was gathered in violation of Article 31. After the inevitable back-and-forth of citing caselaw and arguing exceptions, the military judge will make a ruling that may be contrary to the expectation of the trial counsel, defense counsel, or both. This particular type of evidentiary admission determination is more susceptible than most to unpredictability because the rules of admission are driven much more by caselaw and tests that have been developed by the judiciary than by the actual words of Article 31.

Article 31 provides certain protections to members of the armed forces. Specifically, Article 31(b) requires:

No person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.2

Article 31 serves a legitimate and necessary purpose: when a soldier is questioned by his commander or other military officials, he is conditioned through his military training—and the rigid rank structure of his military environment—to simply answer their questions without ever considering his right to do otherwise.3 However, the plain text of Article 31(b) is much broader than necessary. In fact, the plain language of Article 31(b) is violated on a regular basis when a military victim participates in a pre-textual phone call with her attacker, when a military undercover drug suppression team member asks a question of a drug dealer, or when one military member of a criminal conspiracy asks a question of another member of that same conspiracy. With a plain reading, each of these situations is a violation—whether or not the person being asked the question has any nexus to the military.

This is not a new revelation. The military trial and appellate judiciary have gone to great pains to attempt to do through caselaw what Congress failed to do through legislation: define the boundaries of Article 31, specifically, as theypertain to the exclusion at trial of statements made in violation of its plain text.4

From time to time, scholarly articles are written attempting to explain the then-current state of the law as it pertains to the necessity to warn individuals of their rights under Article 31(b).5 Unfortunately, the requirements have changed over time as the trial and appellate courts have evolved through multiple understandings of the law and provided multiple tests to determine the admissibility of statements.6 The current test provided by the Court of Appeals for the Armed Forces (CAAF) had remained in place for decades; but, that court altered the test in 2014, changing one prong from a subjective determination to an objective one. This re-envisioned analysis did not create an entirely new test but, once again, shows that the application of Article 31 is inconsistent over time and from case to case (or, arguably, from judge to judge). As the application of Article 31 has moved further from its plain language, the inconsistency in its application should be no surprise.

Congress should pass an amendment that includes exceptions to Article 31(b) with the aim of providing clearer guidance to the armed forces regarding when the rights warning is required. Such an amendment would make both case preparation more efficient and judicial rulings more consistent. Most importantly, such an amendment would ensure that those who question Soldiers will understand this requirement even without extensive legal training. There is a way to improve this law that does not require a substantive rewrite of Article 31. Based on decades of caselaw, this article proposes an amendment focusing on providing exceptions—situations in which the broad stroke of Article 31 should not touch. In doing so, almost all the caselaw—not specifically addressing the enumerated exceptions listed in the proposed amendment—will be unaffected.

This article briefly outlines the background of Article 31 and the purposes for its presence in the UCMJ, describes some of the current exceptions that have been declared in caselaw, explores the benefits and detriments of codifying exceptions to Article 31, and provides a proposed amendment to Article 31 that is more reflective of reality.

Background

Article 31 first appeared with the enactment of the UCMJ in 1951. This was not, however, the first appearance of a military-specific right against self-incrimination. The Articles of War, as revised in 1916,7 included a similar, but diluted, right in Article 24, which read,

No witness before a military court, commission, court of inquiry, or board, or before any officer, military or civil, designated to take a deposition to be read in evidence before a military court, commission, court of inquiry, or board, shall be compelled to incriminate himself or to answer any questions which may tend to incriminate or degrade him.8

A revision to the Articles of War in 19209 expanded this right to include informal investigations.10 However, the version of Article 24 that came closest to the broad language of the current Article 31 was enacted by the Elston Act of 1948, which stated,

The use of coercion or unlawful influence in any manner whatsoever by any person to obtain any statement, admission or confession from any accused person or witness, shall be deemed to be conduct to the prejudice of good order and military discipline, and no such statement, admission or confession shall be received in evidence by any court-martial. It shall be the duty of any person in obtaining any statement from an accused to advise him that he does not have to make any statement at all regarding the offense of which he is accused or being investigated, that any statement by the accused may be used as evidence against him in a trial by court-martial.11

Since its inclusion in the UCMJ, the trial and appellate judiciary have repeatedly attempted to provide further guidance on Article 31’s meaning and application in evidentiary admission determinations. Since its inception, appellate courts have applied three main tests to interpret Article 31: the plain language test, the officiality test, and the Duga test—which was recently revised. This Section explains each test in turn.

Plain Language Test

The first test used by the courts in interpreting Article 31 came in 1953, when the Court of Military Appeals issued an opinion in United States v. Wilson.12 In that case, a military policeman named Sergeant Wang was notified of a shooting and responded to the area.13 Another military policeman pointed out two individuals in a crowd around a fire who had been “identified to him by a group of Koreans as the men who had shot their countryman.”14 Sergeant Wang approached the crowd and, looking at the two Accused but not addressing any Soldier by name, “asked who had done the shooting.”15 The two Accused in the case made a joint admission that they had “shot the man.”16

One of the main issues on appeal was whether this admission should have been excluded as involuntary. The statement was taken prior to 31 May 1951, when the UCMJ became law,17 but the court was required by Executive Order 1021418 to apply Article 31 instead of Article 24 because the trial took place after that date.19 The majority applied Article 31 strictly to the facts based on its plain language and found that

[t]hose provisions are as plain and unequivocal as legislation can be. According to the Uniform Code, Article 2, 50 USC § 552, Sergeant Wang was a “person subject to this code,” and appellants, at the time the question was directed to them, were persons “suspected of an offense.” Consequently, the statements should have been excluded in accordance with Article 31(d), and their admission was clearly erroneous.20

The court prefaced this explanation by stating that it “ha[d] no hesitancy in stating categorically that there is not a scintilla of evidence in the record to indicate that these admissions were not in fact voluntary.”21

The court then analyzed the facts to determine whether such a “clearly erroneous” admission was prejudicial.22 The court explained that the admission in this case went beyond simply violating Article 31 based on its plain language test to the point that it violated the policy undergirding Article 31.23 Therefore, the court stated that it “must and d[id] regard a departure from the clear mandate of the Article as generally and inherently prejudicial.”24

Officiality Test

The second test for determining whether Article 31 had been violated is first found in Judge Latimer’s dissent in the Wilson case.25 After arguing extensively that Article of War 24, and not Article 31, should have been applied, Judge Latimer explains that the majority’s interpretation of Article 31 is improper. He laid out a three-part test that must be fulfilled before Article 31’s protections would become applicable;

[F]irst, the party asking the question should occupy some official position in connection with law enforcement or crime detection; second, that the inquiry be in furtherance of some official investigation; and third, the facts be developed far enough that the party conducting the investigation has reasonable grounds to suspect the person interrogated has committed an offense.26

Judge Latimer went on to explain that his reason for “lean[ing] to these limitations [is that he] cannot believe Congress intended to silence every member of the armed forces to the extent that Article 31 . . . must be recited before any question can be asked.”27 Judge Latimer explains that such a test is required because preliminary inquiries must be done before enough information is gathered to determine who exactly is suspected of which particular offense. Using the facts of the Wilson case, he explains,

Until the elements of the crime start to take form it would be unlikely for one asking preliminary questions to know the nature of the accusation. By way of illustration, in this case there had been a killing but at the time Sergeant Wang asked the question no one, except possibly the eyewitnesses, knew whether a crime had been committed. A shooting had taken place but a preliminary inquiry seemed in order to determine among other things who ought to be warned. A preliminary inquiry may lead to clearance as it did to a number of soldiers in this instance.

This test is more in line with the congressional intent behind Article 31.28 It was this test, or variants thereof, and not the majority’s plain language test that boards of review used following Wilson.29

The Duga Test

The third test was originally contemplated in 1954 in United States v. Gibson30 and, later that year, refined by the court in United States v. Duga. The facts in the Gibson case involved an inmate named Ferguson who was encouraged by law enforcement to garner information about the accused. When evaluating the necessity of Article 31 warnings, the court stated its belief that

the evidence permits no conclusion other than that Ferguson was placed near the accused at the direction of agents of the Division for the sole purpose of procuring incriminating statements. The accused was unaware of Ferguson’s connection with the authorities, and any incriminating statements were made in the course of what on its face was an ordinary conversation between inmates of a stockade. No question of coercion, unlawful influence, or unlawful inducement is presented.31

This alone would likely meet the requirements of Judge Latimer’s officiality test as the informant was acting as an agent of law enforcement as part of an official investigation. However, Chief Judge Quinn, with Judge Brosman concurring, found the statement not to be violative of Article 31, as the Accused was under no compulsion to reply and his statement was voluntary.32 Judge Brosman, in his concurrence, explained that Judge Latimer’s earlier officiality test must be coupled with a showing that the person accused or suspected “ha[d] reason to be aware of the official character of the interview,”33 thus creating a two-pronged test that requires (1) an official nature to the questioning, and (2) a reason for the suspect or accused to believe that the questioning is for official purposes.

The Court of Military Appeals later clarified this test in United States v. Duga,34 announcing:

[I]n each case it is necessary to determine whether (1) a questioner subject to the Code was acting in an official capacity in his inquiry or only had a personal motivation; and (2) whether the person questioned perceived that the inquiry involved more than a casual conversation. Unless both prerequisites are met, Article 31(b) does not apply.35

This test was modified in 2014 when CAAF, in United States v. Jones, chose to reject the subjective nature to the second prong and substitute an objective test based on “a reasonable man in the suspect’s position.”36 Therefore, the current test requires (1) the questioner to be acting in an official law enforcement or disciplinary capacity, and (2) a reasonable person in the position of the Accused to interpret the questions as more than a mere casual conversation.37 It is this test that is still cited by military appellate courts when making admissibility decisions on statements made in violation of the plain language of Article 31.38

Current Exceptions Derived from Caselaw

Although the plain language of Article 31 is quite broad—covering every question that any member of the armed forces may ask someone (including a civilian) who has been suspected or accused of a crime—the courts have not interpreted it as such.

This lack of clarity has led to a nearly continual string of cases requiring appellate attention, specifically on the issue of Article 31(b)’s requirements to warn. In November 2013, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) decided United States v. Gilbreath39 on the issue of requirements to warn a member of the Individual Ready Reserve (IRR). In that case, various active duty personnel, including law enforcement personnel, questioned the Accused without first reading him his Article 31(b) rights regarding his theft of a weapon while he previously served on active duty.40 The NMCCA explained that although “[r]ead literally, Article 31(b) has a broad sweep, and would apply to the situation at hand,” this was not dispositive in light of caselaw.41 The NMCCA found that

the circumstances here clearly demonstrate that the appellant was well outside the class of persons whom Congress sought to protect with the creation of Article 31(b). As a member of the IRR, the appellant was far removed in time and place from the coercive military environment contemplated by Congress, in which he might respond to a question in the same way he was trained to respond to a command.42

However, in December of 2014, C.A.A.F. issued its opinion in the case, disagreeing with the N.M.C.C.A.43 and finding that “Article 31(b), UCMJ, governs official questioning in the military justice system, and absent any statutory command to the contrary, an IRR member who is sufficiently integrated into the military to qualify for court-martial jurisdiction is sufficiently integrated so as to be entitled to the statutory protection of the article.”44 This case demonstrates the problems that can be caused by the lack of clarity in Article 31(b). If military appellate courts disagree on the reach of this protection, then unit commanders and military law enforcement personnel are likely to have similar disagreements, leading to inconsistent, and at times improper, procedures when questioning servicemembers. In light of the Duga test, courts have denied suppression motions based on Article 31 in many different contexts. To effectively draft proposed exceptions to Article 31, these cases are a good starting point and are explored below. This section addresses examples of the ways in which that test has been applied to categories of statements.

Medical Personnel

The first prong of the Duga test, which requires that the questioner act in his official capacity, does not mean any official capacity. Courts have required the “official capacity” to be that of criminal investigation or discipline. As such, medical personnel who request information as part of their official medical duties are generally exempt from the requirement to advise. Examples of medical professionals to whom this exception has been granted include doctors,45 nurses,46 and psychiatrists.47

Operational Inquiries

Just as courts have considered official medical capacity to be outside the scope of the “official capacity” required by the first prong of the Duga test, they have excluded commanders and other military personnel from requirements to warn when their inquiries are for operational rather than law enforcement or discipline purposes.

An often-cited example of this distinction occurred in United States v. Loukas.48 In that case, an aircraft crewmember named Staff Sergeant (SSgt) Dryer noticed that Airman (Amn) Loukas was acting oddly during a flight.49 He went and specifically asked Amn Loukas if he had taken any drugs and received a negative response.50 Staff Sergeant Dryer was so convinced that Amn Loukas was performing crew duties under the influence of drugs that he continued to press the point, again asking Amn Loukas what he had taken.51 Eventually, Amn Loukas admitted to using cocaine the night before.52 The Court of Military Appeals determined that the questions were not asked for law enforcement or disciplinary purposes, but rather out of an effort to ensure flight safety; therefore, the accused’s statements were not gathered in violation of Article 31 and admissible at trial.53

Other examples of official questioning that military appellate courts have found lacking to meet the first prong of the Duga test include a commander’s request for information about charges in relation to a security clearance review54 and a military pay technician’s inquiries regarding apparent discrepancies in basic allowance for quarters entitlements.55 However, in United States v. Swift,56 CAAF has also explained that in some cases there may be a “mixed purpose” of both operational or administrative concerns as well as law enforcement.57 When this occurs, the determination as to the requirement to advise will be made on a case-by-case basis and questioning by the chain of command is presumed to be for discipline purposes; this is subject to rebuttal.58

Conversations with Victims

Law enforcement often attempts to elicit incriminating statements through conversations between suspects and their victims. This can be done through live interviews that are surreptitiously recorded or, more commonly, through pre-textual phone calls in which the law enforcement officials are listening in or recording conversations. These conversations, in which the victims act at the direction of law enforcement and are clearly agents of such, meet the requirements of Judge Latimer’s earlier officiality test.59 However, because these conversations are reasonably perceived by the suspect to be casual conversations, the second prong of the Duga test is not met,60 and these statements are routinely admitted into evidence.61 The next section will evaluate the benefit of codifying the extensive caselaw in this area.

Benefits of Codifying Exceptions

Any time a proposal is made to change a statute, a question as to the benefit that such a change will serve naturally arises. In this case, the argument could be made that the courts have adequately dealt with the over-breadth of the plain language of Article 31 through judicial interpretation in caselaw. However, this argument simplifies the main concerns with poorly written statutes that are left to the courts to interpret, specifically clarity and consistency. The primary audience should be those who question service members, such as law enforcement or members of the command, because the primary focus should be ensuring statements are properly elicited. That audience is much less likely than military judges to remain current on military caselaw. By allowing caselaw rather than statute to govern this area, the focus has turned to ensuring improperly elicited statements are not admitted at trial.

Clarity

As explained earlier, courts have laid out a test for determining the necessity of providing notice of the protections in Article 31. However, this test is not the first test provided by the courts, and, although stare decisis may require otherwise, it may not be the last. Each time courts change the test being used, any cases pending at the time could be affected. In each of the cases then pending, counsel for each party are required to relook at the admissibility of statements.

Additionally, interpreting caselaw that is written by different courts over a period of decades and applying it to a certain set of facts can be more closely aligned with art than science. Lawyers will often disagree on whether a certain case more closely resembles a decided case, in which statements were suppressed, or a different case, in which they were admitted. When trial counsel and defense counsel have such a disagreement, it will likely result in a motion to suppress followed by responses and a motions hearing. Although an amendment to Article 31 will not preclude all such disagreements, any clarification to the statute will necessarily make them less common, thereby making the pretrial process more efficient.

Additionally, if military lawyers—who are well versed in researching and interpreting caselaw—routinely disagree on the scope of Article 31, it is unfair to expect law enforcement personnel to have a clear understanding of the current state of the law at any given time. Law enforcement personnel and investigators must regularly make decisions regarding when to give rights warnings; it is these decisions that are reviewed and critiqued by counsel and, afterward, various levels of the judiciary. Clarity for these initial questioners will greatly improve the entire process.

Consistency in Rulings

Although—hopefully—less frequent, trial judges also disagree on the proper application of caselaw to a particular set of facts. When this happens, the stakes are much higher than a simple concern over efficiency. Because jeopardy attaches in a court-martial, the possibility of appeal after trial is completely one-sided. The only opportunity that the government has to appeal a decision to suppress a certain statement is through an interlocutory appeal in accordance with Article 62, UCMJ.62 However, due to the extensive length of time taken by such appeals, the delay in the trial is detrimental to both the government and the accused. The stakes are even higher for the accused, who may be subjected to a lengthy incarceration pending appeal, even if the appellate courts later find in his favor and overturn a conviction. The time he has lost cannot be repaid.

In general, the robust appellate caselaw in this area demonstrates that trial judges are inconsistently and, at times, incorrectly applying Article 31. This becomes even clearer when one realizes that most of the appeals are based on rulings that the defense found improper, and, rightly or wrongly, they rarely include any rulings that favored the defense at the start of trial.

When calculating the trust that service members—as well as the public—place in the military justice system, consistency of rulings is no less important than the accuracy of such rulings. While codifying some exceptions to Article 31 will never completely negate such inconsistencies, it should at least minimize them in the areas covered by such exceptions.

Detriments of Codifying Exceptions

Ensuring that the detriments of any change to a statute is factored into the analysis of whether to make such a change is just as important as ensuring that any change to statute is done in response to a genuine need. This section discusses the three major concerns to consider before amending Article 31 to include exceptions to its general rule.

Necessity of Defining the List of Exceptions as Exhaustive or Non-exhaustive

Anytime a statute is to include a list, there is concern regarding clarity as to whether such a list is to be exhaustive or non-exhaustive. It is important to ensure that readers each interpret the statute in the same way. A variety of methods can be used to remove ambiguity. This article examines two options: one explicit and the other implicit.

The Explicitly Non-exhaustive List Approach

One parallel example to the list included in the proposed amendment is the list of exceptions found in Military Rule of Evidence (MRE) 404(b).63 That rule reads:

Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. On request by the accused, the prosecution must: provide reasonable notice of the general nature of any such evidence that the prosecution intends to offer at trial: and do so before trial—or during trial if the military judge, for good cause, excuses lack of pre-trial notice.64

The “such as” verbiage in MRE 404(b), which tracks, in pertinent part, the corresponding Federal Rule of Evidence,65 signals that the ensuing list is non-exhaustive, in accordance with the drafter’s intent.66 Courts have consistently agreed with this proposition;67 however, it is still common for counsel to go to great pains to contemplate into which of these enumerated pigeonholes a particular piece of evidence fits. The preferred practice would be to make the non-exhaustive nature of such a list as clear as possible.

The Implicitly Non-exhaustive List Approach

An alternative approach is to provide one exception that, within certain genres, will swallow the rule. This was the tack taken by the drafters of exceptions to MRE 412, commonly known as the rape shield. The exceptions subparagraph reads:

b. Exceptions. In a proceeding, the following evidence is admissible, if otherwise admissible under these rules:

  1. evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the accused was the source of semen, injury, or other physical evidence;
  2. evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the accused to prove consent or if offered by the prosecution; and
  3. evidence the exclusion of which would violate the accused’s constitutional rights.68

Clearly, the third exception is broad, excepting many different groups of constitutionally-protected evidence from the general exclusionary function of the rule.

This alternative used in drafting exceptions to Article 31 would result in a final exception to the effect of “any other situation in which the accused or suspect makes a statement that is not based on or caused by pressures unique to military society.” Doing so would likely cause the resultant version of Article 31 to be even less clear and devolve into a new round of cases defining exactly what those words mean.

However, that is not to say that such consideration is without merit. Although Article 31 is not the direct result of a constitutional mandate, its primary purpose stems from the Constitution’s protection against compulsion to be a witness against oneself.69 Specifically, in United States v. Armstrong,70 the Court of Military Appeals stated that it was “deemed necessary because of subtle pressures which existed in military society.”71 That court went on to explain that

conditioned to obey, a serviceperson asked for a statement about an offense may feel himself to be under a special obligation to make such a statement. Moreover, he may be especially amenable to saying what he thinks his military superior wants him to say—whether it is true or not.72

With this context as a backdrop, any amendment that seeks to enumerate exceptions must not unnecessarily envelope statements that are not responsive to this concern.

Concern over Stifling the Evolution of Caselaw

In its 2015 Legislative Report,73 the Military Justice Review Group (MJRG) provided a history of Article 31 and then recognized the prevalence of judicial-made law in the area:

Given the critical role of confessions and admissions in both civilian and military proceedings, a well-developed and evolving body of caselaw exists in connection with Article 31 and the related constitutional and regulatory provisions. Article 31 has changed very little since the UCMJ was enacted in 1950. However, the caselaw concerning the statute’s application has evolved over the years—particularly with respect to Article 31(b)’s warning requirements.74

The MJRG went on to discuss the MREs that implement Article 31’s protections, recognizing that although “the rules generally track the caselaw concerning the Fifth Amendment and Article 31, . . . [t]he rules have not yet been updated to reflect the most recent developments in the caselaw concerning Article 31(b).”75

However, the MJRG chose to recommend that no changes be made to Article 31, out of a concern that codification might “stifl[e] a subject in which the applicable civilian and military caselaw is evolving, or in which the introduction of new language would trigger extensive interpretive litigation.”76

The reality is that the Duga test has been relied upon for over fifty years and has only been amended by the CAAF once, in 2014, when it changed a subjective prong to an objective one in United States v. Jones.77 While courts have found exceptions to the broad reach of Article 31’s plain language during that time, each of those exceptions has been based on the understanding provided by the Duga test itself. To suggest that there is an ongoing dialogue between courts and practitioners in this area is an overstatement. Rather, there is confusion by at least law enforcement personnel and commanders, and, at times, by counsel. If amending the statute can ameliorate this confusion, even in part, then the effort required to do so is well warranted.

Possibility of Overreliance on Exceptions

Another concern is that a list of exceptions to the general prohibition in Article 31 would be confusing for counsel. For example, it may be implied that statements that fit one of the exceptions would meet the requirements to be admissible into evidence in a trial by court-martial so long as it was voluntary. In reality, such a codified list would simply denote statements that would not be suppressed based purely on Article 31. Such statements may still be suppressed if they are found to be made involuntarily,78 based on the protections of the Fifth Amendment to the U.S. Constitution79 or based on the protections laid out in Miranda v. Arizona.80 This is important because military counsel may be accustomed to only analyzing statements through Article 31 since that requirement is typically viewed as more restrictive than Miranda.

Although this concern may come to fruition in some circumstances, it likely would be no more pervasive than the same concern occurring with the judicially-created exceptions to Article 31. Military counsel are not any more susceptible to improperly relying on codified exceptions than they are to researching caselaw and determining that a certain controlling case enunciates an exception to Article 31 that would permit admission into evidence without considering other possible reasons for suppression. Therefore, no serious apprehension should be given to codifying this area of the law based on a concern of misuse for this particular reason.

Recommendation

Although the common law system allows the judiciary to produce caselaw that has the same force and effect of legislative acts, the best and clearest laws are those produced by the legislative process. Because every trial and defense counsel carries with them a copy of the Manual for Courts-Martial (MCM), it would be beneficial for the requirements, and many of the exceptions to those requirements, of Article 31 to be clearly stated by legislative act and printed within that manual. This will, most likely, assist commanders and law enforcement personnel who usually have a copy of the MCM in their offices.

In drafting a proposed amendment, emphasis should be placed on both excluding statements that do not trigger the concerns of the original drafters of Article 31 and excluding statements that would not meet the requirements of the Duga test.

Although it may be complicated to draft an amendment that succinctly encapsulates the type of statements that trigger the concerns about lack of voluntariness in light of “subtle pressures which [exist] in military society”81 without using that language directly, using that language directly would lead to arguments in each case about whether the accused was under such pressure, which would necessarily lead to inefficiency. Courts have routinely quoted and applied this standard directly when attempting to interpret the scope of protection provided by Article 31, which has led to different tests and different applications of those tests in each case. Therefore, using this language in an amendment would be complicated and impractical.

Providing individual exceptions for each of the applications of the Duga test would be less comprehensive and less effective than codifying the test in a few enumerated aspects. This should be followed by examples of exceptions and clarifying language that would allow the test to be applied to each individual circumstance. Therefore, the following is a proposal for an amendment to Article 31, with the amended and added portions underlined:

a. No person subject to this chapter may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.

b. Except as provided in subsection (c) of this section, no person subject to this chapter may interrogate, or request any statement from, a person subject to this chapter who is an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.

c. Any person subject to this chapter who requests a statement from an accused or a person suspected of an offense is not required to inform and advise him based on the requirements in subsection (b) of this section in any of the following situations:

1. The questioner is:

a. not senior in rank to the accused or suspect,

b. not in a position of authority with respect to the accused or suspect, and

c. not serving in a law enforcement or discipline role.

2. The statement would be perceived by a reasonable person in the position of the accused or suspect to be requested as part of a casual conversation in which the questioner is not acting in his official law enforcement, or disciplinary capacity.

3. The questions are asked primarily for other than law enforcement, or discipline purposes. A non-exhaustive list of examples includes inquiries by medical personnel in furtherance of medical treatment, and inquiries for operational or safety purposes.

d. No person subject to this chapter may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade him.

e. No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.

Conclusion

Article 31 provides protections that are understandable when considering the original concerns it addressed—the “subtle pressures which [exist] in military society.”82 However, the broad language used in drafting these protections almost immediately led to unintended consequences that unreasonably hampered the military criminal justice system. Slowly, the courts have carved away at the unnecessarily broad scope Congress created; however, the patchwork nature of these interpretations has led to misunderstandings and inconsistencies.

Congress should pass an amendment to Article 31 that would more specifically lay out the protections it wishes service members to enjoy and that will be clear in both scope and purpose. The Duga test, as amended by United States v. Jones, is an understandable and clear test that could be applied by law enforcement and commands. However, well-meaning service members who want to follow the rule and open up an MCM will not find this test; rather, they will find an article of the UCMJ—the plain reading of which has not been the law for over fifty years. Making the recommended statutory amendments to Article 31 will lead to both more predictability for counsel and more consistency from the bench. More importantly, it will provide a clear framework for investigators and law enforcement personnel who are less likely to turn to caselaw for guidance on proper procedures during their investigations. In doing so, such an amendment will provide clearer rights for those accused or suspected of an offense and will necessarily provide greater efficiency to a military justice system that has become much less efficient over time. TAL

 


MAJ Wheeler is currently assigned as the Deputy Chief, Defense Counsel Assistance Program, Fort Belvoir, Virginia. The author would like to thank Mr. Tim Grammel and Lieutenant Colonel Frank Kostik for their exceptional advice and contributions to this article.



Notes

1. United States v. Gibson, 14 C.M.R. 164, 170 (A.B.R. 1954).

2. UCMJ art. 31(b) (2012).

3. United States v. Armstrong, 9 M.J. 374 (C.M.A. 1980).

The purpose of article 31(b) apparently is to provide servicepersons with a protection which, at the time of the Uniform Code’s enactment, was almost unknown in American courts, but which was deemed necessary because of subtle pressures which existed in military society. Conditioned to obey, a serviceperson asked for a statement about an offense may feel himself to be under a special obligation to make such a statement. Moreover, he may be especially amenable to saying what he thinks his military superior wants him to say—whether it is true or not. Thus, the serviceperson needs the reminder required under article 31 to the effect that he need not be a witness against himself.

Id. at 378 (citing UCMJ: Hearings on H.R. 2498 Before a Subcomm. of the H. Comm. on Armed Servs., 81st Cong. 1183 (1949) at 984-85).

4. United States v. Cohen, 63 M.J. 45, 50 (C.A.A.F. 2006). “This Court has also interpreted Article 31(b) in a manner that recognizes the difference between questioning focused solely on the accomplishment of an operational mission and questioning to elicit information for use in disciplinary proceedings.” Id.

5. See, e.g., Major Robert F. Maguire, The Warning Requirement of Article 31(b): Who Must Do What to Whom and When?, 2 Mil. L. Rev. 1, 8 (1958); Captain Manuel E.F. Supervielle, Article 31(b) Who Should be Required to Give Warnings?, 123 Mil. L. Rev. 151, 151-214 (1989).

6. Supervielle, supra note 5, at 151.

7. Articles of War, 39 Stat. 619 (1916).

8. Id. art. 24.

9. Articles of War, 41 Stat. 77 (1920).

10. Supervielle, supra note 5, at 174-75.

11. Selective Service Act of 1948, ch. 625, § 214, 41 Stat. 792 (1948), https://www.loc.gov/law/help/statutes-at-large/80th-congress/session-2/c80s2ch625.pdf.

12. United States v. Wilson, 8 C.M.R. 48 (C.M.A. 1953).

13. Id. at 54.

14. Id.

15. Id.

16. Id.

17. Id.

18. Executive Order 10214, in Manual for Courts-Martial, United States ix (1951), https://www.loc.gov/rr/frd/Military_Law/pdf/manual-1951.pdf. “This manual shall be in force and effect in the armed forces of the United States on and after May 31, 1951, with respect to all court-martial processes taken on and after May 31, 1951.” Id. See also Exec. Order No. 10214, 16 Fed. Reg. 1303 (Feb. 8, 1951).

19. Wilson, 8 C.M.R. at 54.

20. Id. at 55.

21. Id. at 54. In excluding a statement that was voluntarily given, the court explained that “[i]t is, of course, beyond the purview of this Court to pass on the soundness of the policy reflected in those portions of Article 31 which extend the provisions of its comparable predecessor, Article of War 24—and no sort of opinion is expressed thereon” (citation omitted). Id.

22. Id. at 55.

23. Id.

24. Id.

25. Id. at 57-61.

26. Id. at 61.

27. Id.

28. See Congressional Floor Debate on Uniform Code of Military Justice, 95 Cong. Rec. 5, 98-99, 214 (1949) http://www.loc.gov/rr/frd/Military_Law/pdf/congr-floor-debate.pdf.

29. Supervielle, supra note 5; see, e.g., United States v. King, 13 C.M.R. 261 (A.B.R. 1953) (“[I]t clearly appears that the sergeant’s question was within the scope of his routine administrative duties and bore no relationship whatsoever to the accused’s acts. In our opinion, the accused’s response was in the nature of a spontaneous statement, volunteered ‘without urging, interrogation or request’ and must, therefore, be regarded as voluntary.”).

30. United States v. Gibson, 14 C.M.R. 164, 170 (A.B.R. 1954).

31. Id. at 168.

32. Id. at 171.

33. Id. at 172.

34. United States v. Duga, 10 M.J. 206 (C.M.A. 1981).

35. Id. at 210 (citing United States v. Gibson, 14 C.M.R. 164, 170 (A.B.R. 1954).

36. United States v. Jones, 73 MJ 357, 362 (C.A.A.F. 2014) (“We now expressly reject the second, subjective, prong of that test, which has been eroded by more recent cases articulating an objective test.”) (citation omitted).

37. United States v. Bishop, 76 M.J. 627 (A.F. Ct. Crim. App. 2 Feb. 2017) (“The first prong is whether the person who conducted the questioning was participating in an official law enforcement or disciplinary investigation or inquiry, as opposed to having a personal motivation for the inquiry. The second prong applies an objective standard of a reasonable person in the suspect’s position to determine whether that person would have concluded that the questioner was acting in an official law enforcement or disciplinary capacity.”) (citations omitted).

38. See United States v. Alford, 2018 CCA LEXIS 388 (A.F. Ct. Crim. App. Aug. 15, 2018); United States v. Randall, 2015 CCA LEXIS 584 (Army Ct. Crim. App. Dec. 17, 2015).

39. United States v. Gilbreath, NMCCA 201200427 (N-M. Ct. Crim. App. Nov. 12, 2013).

40. Id.

41. Id.

42. Id.

43. United States v. Gilbreath, 74 M.J. 11, 17 (C.A.A.F. 2014) (“Because an IRR servicemember may well feel compelled to respond to an official military questioner without considering any privilege against self-incrimination, we have no reason to depart from our case law, supported by a plain reading of the statute, its legislative history, and the fundamental purpose of the statutory protection” (internal citations omitted)).

44. Id.

45. United States v. Fisher, 44 C.M.R. 277 (C.M.A. 1972). It should be noted that this case was decided before United States v. Duga, but has been cited to the Court of Military Appeals (CMA) after the Duga test was announced in United States v. Bowerman, another case involving questioning by a doctor. United States v. Bowerman, 39 M.J. 219, 221 (C.M.A. 1994).

46. United States v. Moore, 32 M.J. 56, 60 (C.M.A. 1991) (“[T]he record shows that she acted only in a legitimate medical capacity in asking these questions and in response to appellant’s voluntary request for emergency medical treatment. Such questioning is clearly outside the scope of Article 31.”).

47. United States v. Raymond, 38 M.J. 136 (C.M.A. 1993) (“Here there was no interrogation by an officer, an investigative officer, or, . . . a person acting as a knowing agent of a military unit or of a person subject to the code. Mr. Winston was neither a superior officer of appellant nor a person occupying an official position such that appellant would feel compelled to answer his questions. In fact, appellant voluntarily sought counseling on a walk-in basis at the base hospital.”).

48. United States v. Loukas, 29 M.J. 385 (C.M.A. 1990).

49. Id. at 386.

50. Id.

51. Id.

52. Id.

53. Id. at 389.

Sergeant Dryer was the crew chief of an operational military aircraft who was similarly responsible for the plane’s safety and that of its crew, including the accused, his military subordinate. In addition, his questioning of the accused was limited to that required to fulfill his operational responsibilities . . . [.] [T]he unquestionable urgency of the threat and the immediacy of the crew chief’s response underscore the legitimate operational nature of his queries.

Id.

54. United States v. Bradley, 51 M.J. 437 (C.A.A.F. 1999).

55. United States v. Guron, 37 M.J. 942 (A.F. Ct. Crim. App. 1993).

56. United States v. Swift, 53 M.J. 439 (C.A.A.F. 2000).

57. Id. at 446.

58. Id.

59. United States v. Wilson, 8 C.M.R. 48 (C.M.A. 1953).

60. United States v. Duga, 10 M.J. 206 (C.M.A. 1981).

61. See, e.g., United States v. Aaron, 54 M.J. 538, 543 (A.F. Ct. Crim. App. 2000) (“Even from a cursory review of the videotape meetings on 6 and 7 October 1998 and the transcripts of those meetings make it clear that the appellant perceived that he was talking with his young daughter and former lover, not an agent of the government”). United States v. Martin, 21 M.J. 730, 732 (N-M. Ct. Crim. App. 1985) (“Although Mrs. M, both in the telephone conversation and the ‘bugged’ discussion in appellant’s office, was acting under the direction of NIS agents, her status as the victim of the alleged offenses . . . did not change . . . we find that appellant had no rational basis to believe his conversations with Mrs. M were anything more than private, emotion-ridden colloquies.”).

62. UCMJ art. 62 (2012).

An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within seventy-two hours of the order or ruling. Such notice shall include a certification by the trial counsel that the appeal is not taken for the purpose of delay and (if the order or ruling appealed is one which excludes evidence) that the evidence excluded is substantial proof of a fact material in the proceeding.

Id. a(2).

63. Manual for Courts-Martial, United States, Mil. R. Evid. 404(b) (2019) [hereinafter MCM].

64. Id.

65. Fed. R. Evid. 404(b). This rule reads:

Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial—or during trial if the court, for good cause, excuses lack of pretrial notice.

Id.

66. MCM, supra note 63, app. 22, at A22-34.

While providing that evidence of other crimes, wrongs, or acts is not admissible to prove a predisposition to commit a crime, the Rule expressly permits use of such evidence on the merits when relevant to another specific purpose. Rule 404(b) provides examples rather than a list of justifications for admission of evidence of other misconduct.

Id.

67. See United States v. Castillo, 29 M.J. 145, 150 (C.M.A. 1989) (“[i]t is unnecessary for admissibility that her testimony fit within a particular category listed in the rule.”). See, e.g., United States v. Staton, 69 M.J. 228 (C.A.A.F. 2010) (“one of the “other purposes” for which uncharged misconduct may be admissible is evidence of “consciousness of guilt.”) (quoting United States v. Cook, 48 M.J. 64, 66 (C.A.A.F. 1998)); U.S. v. Hepburn, 2013 WL 5911717 (A.F. Ct. Crim. App. Oct. 28, 2013) (“‘Consciousness of guilt’ is one of the ‘other purposes’ for which uncharged misconduct may be admissible.”) (quoting United States v. Cook, 48 M.J. 64, 66 (C.A.A.F. 1998)); United States v. Talkington, 2013 WL 1858584 (A.F. Ct. Crim. App. Apr. 26, 2013) (“Character evidence is admissible for purposes other than proving action in conformity therewith, to include proving state of mind.”).

68. MCM, supra note 63, Mil R. Evid. 412(b).

69. U.S. Const. amend. V.

70. United States v. Armstrong, 9 M.J. 374 (C.M.A. 1980).

71. Id. at 378.

72. Id.

73. Report of the Military Justice Review Group, Part I: UCMJ Recommendations (22 Dec. 2015), https://ogc.osd.mil/images/report_part1.pdf.

74. Id. at 312-13 (citation omitted).

75. Id. at 313.

76. Id. at 314.

77. United States v. Jones, 73 MJ 357 (C.A.A.F. 2014).

78. United States v. Jones, 24 M.J. 367, 369 (C.M.A. 1987) (Everett, C.J., concurring).

Of course, an accused is still free to claim that his statement was involuntary in the traditional sense of that term . . . and his perception that he was being officially questioned may be relevant to that issue. However, if a conversation is really casual and informal, it may be very difficult for the defense to contest the voluntariness of any admissions by the accused.

Id.

79. U.S. Const. amend. V (“[N]or shall [any person] be compelled in any criminal case to be a witness against himself.”).

80. Miranda v. Arizona, 384 U.S. 486 (1966). See United States v. Jones, 19 M.J. 961, 966 (A.C.M.R. 1985) (“There is, of course, no question that the Fifth Amendment and Miranda apply in the military.”). See also United States v. Tempia, 37 C.M.R. 249 (C.M.A. 1967).

81. United States v. Armstrong, 9 M.J. 374 (C.M.A. 1980).

82. Id.