Found in 34 CARDOZO L. REV. 1539
Davis doesn’t apply because the ambiguous request came BEFORE the accused was advised of his Miranda rights. So, why isn’t there a similar situation for an accused who makes an ambiguous request prior to Article 31, UCMJ, warnings.
Nonetheless, a critical factual distinction between Sessoms’s statements and those evaluated by the Court in both Davis and Berghuis remains: Sessoms made his statements before he was informed of his rights under Miranda. The Miranda Court held that the coercive atmosphere of interrogation makes it essential for a suspect to be “given a full and effective warning of his rights at the outset of the interrogation process.” 384 U.S. at 445. As the Court stressed, when “the police [have] not advised the defendant of his constitutional privilege . . . at the outset of the interrogation,” the suspect’s “abdication of [that] constitutional privilege—the choice on his part to speak to the police—[is] not made knowingly or competently because of the failure to apprise him of his rights.” Id. at 465 (citing Escobedo v. Illinois, 378 U.S. 478 (1964)).
Frankly this is a real world interaction and accounts for real world talk not fully appreciated, or perhaps ignored in Davis. The police here did what they often do and told the accused that having a lawyer wouldn’t help. True, it’s the 9th, the most slapped down circuit.
The new Mil. R. Evid. may not apply to any offense committed prior to it’s effective date? Is there an argument that application to an offense prior to the effective date violates the ex-post facto clause. See Calder v. Bull, 100 U.S. 1 (1798).
Article I, section 9 of the United States Constitution states in relevant part that “[n]o Bill of Attainder or ex post facto Law shall be passed,” and, in its opinion in Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with this Ex Post Facto Clause:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.
Here is Prof. Colin Miller TG’s blog on the retroactive application of FRE 413-414.
I have for some time been challenging the limitation on the defense opportunity to get depositions.
The usual response is that a deposition isn’t for “good cause” because, according to the Discussion under R.C.M. 704, the witness “will be available at trial.” I argue that R.C.M. 704 and the discussion are not procedure authorized by the President consistent with his Article 36, UCMJ, powers, but are substantive. If it is substance, then it is beyond the Article 36 power.
Here is an interesting article on the federal rules which may help with my argument, we’ll see.
The Criminal Rules Enabling Act, Max Minzner, University of New Mexico School of Law
July 10, 2012
46 University of Richmond Law Review 1047 (2012)
The Rules Enabling Act authorizes the Supreme Court to prescribe “general rules of practice and procedure” as long as those rules do not “abridge, enlarge or modify” any substantive right. The Supreme Court has frequently considered the effect of these restrictions on the Federal Rules of Civil Procedure. In order to avoid Enabling Act concerns, the Court has imposed limiting constructions on a number of the Civil Rules. A significant academic literature has grown up analyzing and criticizing the Court’s approach in these cases, frequently arguing for more expansive interpretations of the REA that would place more significant constraints on the Civil Rules. The impact of these statutory restrictions on the Rules of Criminal Procedure, though, has been virtually unstudied. Neither the Supreme Court nor academics have focused on the Criminal Rules when interpreting the REA.
This article argues that this approach is a mistake. Even under the most constrained view of the Rules Enabling Act, several Criminal Rules are potentially invalid because they are insufficiently procedural. After outlining the current doctrine on the Enabling Act and the Civil Rules, I provide a framework for applying the Act to the Criminal Rules and examine the constraints of the REA with respect to four Rules of Criminal Procedure that face validity challenges. In addition to identifying these Enabling Act issues, this article proposes potential interpretations of these Rules that can reduce their substantive effect by either reading the Rules narrowly or grounding the doctrines in federal common law, rather the Enabling Act.
The Inspector Rutledge detective stories are a favorite of mine. To quote an Amazon review:
[T]he books are set in the period just after the First World War, and Inspector Rutledge is a veteran of said conflict. Even more unique, he’s haunted by the ghost of one of his subordinates, a corporal whom Rutledge had to shoot and kill after the man panicked and tried to run away during a battle. The dead man doesn’t blame Rutledge for the incident, not exactly anyway, and serves as a sort of alter ego for Rutledge. You’re never entirely certain whether Hamish MacLeod’s ghost is really there, or merely a figment of Rutledge’s imagination, given that he was horribly scarred psychologically by the war.
Hamish talks to the inspector and is often quicker to spot a problem, an inconsistency, or a wrong – “b’ware” he’ll say, or sometimes just “’ware.”
As defense counsel we all need a Hamish (not one we have killed of course). Sentencing is often the time in a trial when the ability to put as much favorable influential evidence or information before the fact-finder is at its apogee. That’s a good thing because the actual fundamental purpose of sentencing is – to parse the rules, “to mete out an appropriate sentence for this offender and offenses.” For some reason that’s why it struck me that United States v. Takara, ACM S31832 (A.F. Ct. Crim. App. 13 July 2012)(unpub.), is worth the read.
The “rule of lenity” “requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.”
From Levin, Daniel and Stewart, Nathaniel, Wither the Rule of Lenity, Engage, November 16, 2009. This is a claim or objection I have used from time to time, not always successfully. Typically I’m using it as an argument regarding application of an R.C.M. or Mil. R. Evid., an argument by analogy I suppose. Another way to express this would be that where there is an ambiguity the ambiguity should be construed against the writer. Perhaps there is some hope?
In 2008, in United States v. Santos, the Supreme Court issued a plurality opinion holding that a key term in a federal money laundering statute was ambiguous and applied the rule of lenity to resolve the ambiguity in the defendants’ favor. The plurality involved just such a coalition of conservative and liberal Justices (Justices Scalia, Thomas, Ginsburg, and Souter; with Justice Stevens writing separately and agreeing that the rule should apply), raising the question of whether the rule may be entering a period of somewhat greater application…
Justice Scalia wrote the majority opinion in Santos.
Under a long line of our decisions, the tie must go to the defendant. The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.
This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress’s stead.
When interpreting a criminal statute, we do not play the part of a mind reader. In our seminal rule-of-lenity decision, Chief Justice Marshall rejected the impulse to speculate regarding a dubious congressional intent. “[P]robability is not a guide which a court, in construing a penal statute, can safely take.” United States v. Wiltberger, 5 Wheat. 76, 105 (1820). And Justice Frankfurter, writing for the Court in another case, said the following:“When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity.” Bell v. United States, 349 U. S. 81, 83 (1955).
Slip op. at 6-7.
A change to Fed. R. Crim. Pro. recently adopted reminds me of a motion I file from time to time after the member's have found my client guilty, or at the time the military judge asks if there is anything else before adjourning the court — that's a Griffith motion. But first here is the change to the federal rule (which if you actually believe in Article 36, UCMJ,[n.1] should be adopted by the military — ha ha).
We are all used to losing motions for a finding of not guilty under R.C.M. 917. But don't give up. The standard of some evidence is so minimal, and credibility of the evidence is not a factor on a FNG motion. In United States v. Griffith, the court discussed the authority of the military judge to conduct a post-trial session of court prior to authentication of the record.
Unted States v. Griffith, 27 M.J. 42, 47 (C.M.A. 1988).
Unted States v. Griffith, 27 M.J. 42, 48 (C.M.A. 1988). See also, United States v. Scaff, 29 M.J. 60 (C.M.A. 1989); R.C.M. 1102.
n.1: ". . . procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, . . ."
This is a waivable issue, as SCOTUSBlog reports.
The Supreme Court ruled Wednesday that, if federal prosecutors violated
a plea bargain with an accused who pleads guilty, that must be brought
out at the trial and thus cannot be challenged for the first time on
appeal. On a 7-2 vote, the Court cleared up a conflict among lower
courts by narrowing a federal rule that allows an exception to the
usual rule that a claim not made at trial is forfeited and cannot be
raised on appeal. The ruling came in the case of Puckett v. U.S. (07-9712). Justice Antonin Scalia wrote for the Court; Justice David H. Souter dissented, joined by Justice John Paul Stevens.
Here is the SCOTUSWiki site on the relevant documents.
The Air Force Court of Criminal Appeals has issued a decision in United States v. Harris, __ M.J. ___, No. 2008-03 (A. F. Ct. Crim. App. 2009).
IP: This was a government appeal under Article 62, UCMJ.
Background: The accused had been prosecuted for use of cocaine. At trial he testified to an innocent ingestion defense and a friend testified to support his claim. He was found not guilty. The accused tested positive again for cocaine shortly after trial. OSI investigated and the accused's friend dimed him out. Thus the accused is now being prosecuted for obstruction of justice and perjury which resulted in his acquittal. The military judge dismissed the charge based on R.C.M. 905(g), the res judicata and collatoral estoppel rule. Intuitively it would seem right that a person who lied to get acquitted in his trial could be prosecuted later if the lie was exposed and could be proven. However, it's not that simple. What ifthe lie wasn't the reason for the acquittal? What if the members found the accused not guilty because of a serious flaw in the urinalysis collection process?
Decision: The decision of the military judge is reversed, prosecution may proceed. The court specifically noted the concern that a prosecution for perjury could ensue any time an accused testified and then was acquitted. But the court pooh-poohed the idea. Their view is that convening authorities have better sense to refer charges in all those cases. Rather, the court found here that there was specific credible independent evidence, so the accused was not subjected to prosecutorial vindictiveness.
An appellate practice note: For an additional interesting issue in this case go to CAAFLog for a discussion about whether or not the court had jurisdiction to decide the case the way it did. Essentially Article 62, UCMJ, gives the prosecution a narrow right of appeal. In this case it appears that at some point the appellate government abandoned or did not advance the very argument that A.F.C.C.A. found for the prosecution on. So, could the court do that. As CAAFLog says, "Perhaps we will soon see a CAAF opinion answering that interesting question."