Well, according to the military appellate courts and law, a military member can consent to a search. However, is that realistic. The military is a society that follows orders. Can the circumstances surrounding the request for a consent search be so (objectively?) onerous as to make a refusal futile. I think so.
Remember how the suspect ends up being asked to consent to a search.
1. The COC tells the SM to be at the 1st Sergeant's/Shirt's office at a certain time.
For many years I've had a small book on my shelf called How to Lie with Statistics first published in 1954. I see that it is now in a 1993 paperback edition, with pictures.
Darrell Huff, How to Lie with Statistics, W. W. Norton & Company (September 1993).
I am reminded of Mr. Huff's book by this entry on the Crime & Consequences blog which I follow for interesting news and usable information. I'll quote and paraphrase extensively from the entry so you'll understand why I am reminded of Mr. Huff. Here is Kent Scheidegger's, The Incredible Growing Statistic.
Professior Miller’s blog has this topic Let’s Make A Deal: Supreme Court Of Pennsylvania Correctly Affirms Rule 410 Ruling But On Wrong Grounds.” Evidence Prof. Blog, 30 January 2009. Professor Miller argues, correctly, that the court was right, but for the wrong reason (under Federal Rule of Evidence 410, as well as the Pennsylvania Rule).
I’m writing to add a military nuance.
First, under Military Rule of Evidence 410, the Pennsylvania decision would still be correct, but for the wrong reason — or would it? On the facts the answer is still yes. See United States v. Watkins, 34 M.J. 344 (C.M.A. 1992)(statements to Army CID). There is however a potential nuance for some cases particularly in the Department of the Navy. I have to admit that I’ve tried to advance a similar argument as that made by the appellant in VanDiver, — and yes lost. Van Diver was talking to the police, the military equivalent of the MP’s, NCIS, OSI, CID, CGIS, not an attorney. There’s also no evidence to suggest that the police improperly told Van Diver that they had authority or implied authority to strike a deal, etc. These facts of the police/suspect interaction would put Van Diver into a different context — improper promises, etc.
It is true, not even police officers know who is telling the truth. And anyone who tells you different is — yes — a liar. The Evidence in the News blog has a comment. Note, the comment on the research is consistent with the research. There is ample valid research to show that police officers are no better than the citizen in telling if someone is lying. The critical distinction is not that the police office can tell a person is lying but the ability to identify signs of lying. This leads to a hunch or gut instinct so the police officer uses various questioning techniques to eventually get the person to confess. Later of course the police officer says she knew the person was lying — the perfect example of my Rule of Reasoning by Hindsight.
Fingering Liars: Ask Witnesses to Tell the Story Backwards
A substantial body of research demonstrates that people are poor lie detectors. Even professionals, like police officers, perform poorly in controlled tests; they often err in separating liars from truth tellers. How can attorneys tell if their clients are lying? How can they identify lies during witness interviews? And is there any way to reveal a witness's lies to the jury?
A recent article by Aldert Vrij and colleagues highlights an intriguing new approach. When forced to recount an event in reverse chronological order, liars demonstrated more noticeable cues of deceit. They mentioned fewer details, made more speech hesitations, spoke more slowly, and shuffled their legs and feet more often than truth tellers. Responding in part to these cues, police officers in a controlled experiment were able to detect liars and truth tellers more accurately when witnesses related their stories in reverse chronological order.
From SMART (Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking), Office of Justice Programs, Department of Justice.
A Practitioner's Guide to the Adam Walsh Act
Cases Interpreting 18 USC 2250 (September 23, 2008)
In United States v. McPherson, CCA 20070115, No. 08-0651/AR, the court has granted the following issue.
(As noted earlier the lower court opinion does not appear to be available on the court's website or LEXIS.)
— Or more likely you can't un-ring the phone.
United States v. Thomas, 2009 U.S. Dist. LEXIS 4389, No.08-cr-87-bbc-02 (W.D. Wis. January 20, 2009), is of interest for several reasons: the use of cellphone tracking technology, and application of the recent U.S. Supreme Court decision in Herring v. United States.
First for the techies. Police were investigating a bank robbery involving four suspects. As a result of some astute investigating they interviewed a potential suspects mother. During the interview she told the police about some cellphone calls, in particular a lot of calls from one number where she didn't know the caller. Acting on a hunch, a good hunch as it turned out, police then obtained a trap and trace warrant on that cellphone number. Police then used some sophisticated equipment.
Major Tyesha E. Lowery, One "Get Out of Jail Free" Card: Should Probation Be an Authorized Courts-Martial Punishment?, 198 Mil. L. Rev. 165 (2008).
Probation is not an authorized punishment that can be adjudged by the military judge or members. The author of this article advocates allowing the trial sentencer to impose "probation," and therefore substituting the military judge's own view of what's good for the unit for that of the commander.
Lest you think otherwise, I'm not averse to a properly constructed, managed, and supervised probation program. It could begin with something similar to the A.F. return to duty program or a residential, non-custodial, correctional training; a form of "liberty risk" / Cinderella liberty; monthly random urinalysis; alcohol screening; anger management counseling; and various other counseling programs.
On 3 February, the Court of Appeals for the Armed Forces will hear oral argument in United States v. Delarosa, No. 08-0390/NA [2008 CCA LEXIS 4, N.M. Ct. Crim. App. January 10, 2008)(unpub. opinion)]. The pending C.A.A.F. argument is somewhat interesting in light of the pending Supreme Court argument in Kansas v. Ventris, which we looked at the other day.
United States v. Watkins, 34 M.J. at 345.
The judge raps the gavel and announces that, "this court is
adjourned." Now what? That happened to Gunnery Sergeant Rodriguez years
ago.
Court-Martial Trial Practice Blog