Be careful who you talk to

Be careful of who you talk to if you are in trouble.  I think it’s fair to say that CAAF has narrowed the who and when requirement for an Article 31, UCMJ, warning, as illustrated in a recent Air Force case.

Thus, Article 31(b), UCMJ, warnings are required when (1) a person subject to the UCMJ, (2) interrogates or requests any statement, (3) from an accused or person suspected of an offense, and (4) the statements regard the offense of which the person questioned is accused or suspected.” Jones, 73 M.J. at 361 (footnotes omitted) (citation omitted). However, the second of these prongs is met only if the questioner was acting in an official law enforcement or disciplinary capacity, or could reasonably be considered to be acting in such a capacity by a “reasonable person” in the suspect’s position. Id. at 362. “Questioning by a military superior in the immediate chain of command ‘will normally be presumed to be for disciplinary purposes,’” although such a presumption is not conclusive. Swift, 53 M.J. at 446 (quoting United States v. Good, 32 M.J. 105, 108 (C.M.A. 1991)) (additional citations omitted).

An “interrogation” includes “any formal or informal questioning in which an incriminating response either is sought or is a reasonable consequence of such questioning.” Mil. R. Evid. 305(b)(2).

United States v. Ramesk, AFCCA, 29 Oct. 2018, at 17.

In United States v. Cox, decided by the Navy-Marine Corps Court of Criminal Appeals in November 2018, the Appellant raised three issues, one of which asked whether statements to a [civilian but military retiree] recovery care coordinator should be suppressed because they were not preceded with an Article 31, UCMJ, warning.  The initial problem for Cox was her counsel’s failure to raise the issue prior to trial but waited until after entry of pleas.  The CDC made the motion late–note this was a civilian counsel case (CDC).  The CDC waited until testimony on the merits.  It appears that the CDC acted “to gain a tactical advantage over the government.”  Slip op. at 5.  What advantage was to be gained is not clear from the record, other than an unprepared TC who now has to answer a significant motion on the fly.

(In practice, you should be careful when entering pleas.  If possible delay entry of pleas as long as possible, most judges will allow a delay until a later date specified in the trial management order or will allow counsel to defer motions to a date set in the trial management order regardless of the entry of pleas.)

Here, the military judge did not find good cause for the delay in moving to suppress statements and found the issue was waived.  Regardless, the military judge appears to have addressed the suppression issue (perhaps concerned that the NMCCA or CAAF might not find the issue waived).  The military judge ruled that the civilian employee witness was not required to advise the accused of her right to silence.  NMCCA found the issue was waived, but like the military judge addressed the suppression issue anyway and held the military judge did not abuse his discretion by admitting any incriminating statements.

In addressing the IAC claim for failure to raise the motion timely, NMCCA found there was no prejudice because the motion would have failed anyway.  It will be interesting to see how CAAF if it grants a petition, deals with the issues.  The law on civilian employees of the military and their obligation to give Article 31, UCMJ, warnings is reasonably clear at this point, but perhaps CAAF wants to put another nail in the coffin of a civilian employee’s Article 31, UCMJ, “obligation” and leave the question for resolution on a case-by-case basis.  If the CAAF does find the statements should have been suppressed then they get to the waiver and IAC issue.

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