The Journal of The DuPage County Bar Association

Back Issues > Vol. 19 (2006-07)

A Military Law Primer: How the Uniform Code of Military Justice is a Model for the Treatment of Defendants in Criminal Cases
By Trevor J. Orsinger, Captain, United States Air Force

Face down in the pavement before the break of dawn doing yet another pushup was not where I thought I would be after practicing law for two years as a Cook County Public Defender. At twenty-seven years old and recently married, I was convinced I would return to my hometown of Wheaton, Illinois, and continue to practice in familiar surroundings with well-known faces. Instead, my path led me to Maxwell Air Force Base in Montgomery, Alabama, home of the Air Force Judge Advocate General School where I had been accepted the previous summer in 2005. After completing training, I was fortunate enough to be stationed at Patrick Air Force Base in Cocoa Beach, Florida, in April of this past year.

Prior to entry into service, I understood there would certainly be distinctions between my life as a civilian and my profession as an officer in the Air Force. However, I expected the practice of law to be (at least vaguely) similar to civilian practice. I had been exposed to several courtrooms as an assistant public defender, numerous judges, and varied clients. Still, it was a shock to practice in the military setting, for nothing could adequately prepare me for the rigors and variations of a military court.

Since I have been stationed at Patrick, I have been fortunate enough to be involved in the prosecution of several criminal cases. The differences between the two standards of practice are profound, but those differences should be compatible with the civilian practice, and serve to improve the current judicial system. The military system sets standards that are in pursuit of protection for the defendant, and these processes should be an example for how states proceed in the prosecutions of civilians.

In essence, the manner in which the military judicial system investigates and prosecutes those accused of crimes is a model for how each jurisdiction in the country should treat civilian defendants. The Uniform Code of Military Justice ensures that the rights of a defendant are strenuously checked by various levels of command throughout the prosecution of a crime. This article will discuss one of the most important differences between civilian criminal practice and how the military prosecutes crimes: the manner in which interrogations of a defendant are conducted in the military setting and the effect those rights have on an individual suspected of committing a crime.

Statements of Defendants: Confessions, Interrogations and Article 31 Rights

The rights warning a suspect must receive upon interrogation were enunciated in the seminal case of Miranda v. Arizona, 384 U.S. 436 (1966).1 Miranda determined that when a person is placed in custody or deprived of his or her liberty, that person is entitled to be informed of the rights to counsel, the right to say nothing, and that any statements he makes could be used against him or her in a prosecution.2 The Illinois legislature has codified this principle, determining that "[o]n being taken into custody every person shall have the right to remain silent."3 As a result, the key element that triggers the so-called Miranda warnings is an actual deprivation of the liberty of a suspect to move freely. The warnings are required when confessions are "obtained while the defendant is in custody or otherwise deprived of freedom in some significant way."4 As a result, the idea of custody during the "interrogation" becomes tantamount to determining whether a confession obtained in this setting is admissible against the defendant in a prosecution.

The Illinois legislature has established that a statement may be used in a prosecution of a defendant during a custodial interrogation which occurs when "(i) a reasonable person in the subject’s position would consider himself or herself to be in custody and (ii) during which a question is asked that is reasonable likely to elicit an incriminating response."5 Scrutinizing those elements one at a time determines the prosecutorial validity of a statement made by a suspect during an arrest.

Illinois examines two factors when deciding whether a person is held in custody or not for Miranda purposes: "the intent of the officer and the understanding of the arrestee."6 The officer’s interpretation of whether a suspect is in custody is self-explanatory; the officer’s role becomes more complicated during the interrogation phase. The focus on the determination of custody is on how a suspect views his or her confinement. This perspective "is an objective test of whether a reasonable person would believe that under the circumstances he or she was free to leave the scene of the interrogation or whether he or she had been deprived of freedom in some significant way."7

The factors of the officer and suspect perspectives will be analyzed separately, but they must be considered in the context of the potential arrest. Ultimately, courts will examine the circumstances surrounding the custody of the individual when deciding whether Miranda warnings should have been recited to a suspect, "including: the location, length, mood and mode of interrogation; the number of police officers present; any indicia of restraint or arrest; the intention of the officers; and the extent of the knowledge of the officers."8

The second element of whether a statement by a defendant may be used in his or her prosecution is the requirement that an "interrogation" occurred. To use that statement in a prosecution, "the confession must come as the result of an interrogation as opposed to a volunteered statement by the suspect."9 The case that explains the so-called interrogation requirement of Miranda is Rhode Island v. Innis, 446 U.S. 291 (1980).10 That aspect of the Miranda analysis is divided between the officer’s intention and the defendant’s understanding of what information the officer is eliciting.11 "The Innis test requires a court to look at the facts and determine whether it was the officer’s intention to elicit a statement and whether a defendant would reasonably have believed that he or she was being subjected to an interrogation."12

The Uniform Code of Military Justice contains many of the laws enacted to guarantee that the military justice system comports with the Constitution. It also provides the framework for protecting those accused of committing crimes, whether he or she is a newly enlisted private or a career general. Acting in concert with the UCMJ, the Rules for Court-Martial and the Military Rules of Evidence are the principle methods used to prosecute crimes in the military setting. Given that the military member submits to a different set of rules than a civilian, the differences between the two forms of practice can be profound. It is most apparent in the context of self-incrimination.

Different circumstances will trigger different warnings for the service member.13 There are two specific circumstances on which this article will focus: first, the interrogation after the commission of a crime and second, the custodial interrogation for 5th Amendment purposes.14 This article will not focus on the 6th Amendment Right to Counsel that occurs after the military equivalent to a charging document is brought about.15 Ultimately, the 5th Amendment privileges remain exactly intact for the service member as described above. The significant change occurs in the administration of rights under Article 31 of the Uniform Code of Military Justice, rights that are given in a very different context.

The Military Rules of Evidence dictate the conditions under which certain warnings must be given to an accused service member. They incorporate the specific nature of the warnings that are recited in the Article 31 of the Uniform Code of Military Justice, labeled under Title 10 of the United States Code.16 Prior to any involvement in a case and "[a]s a general rule, the Article 31 (b) warnings are to be given prior to any interrogation of a suspect or accused."17 Because of the application of this basic principle, military members are entitled to three notifications before an interrogator can ask questions about a suspected crime, whether or not the suspect is in custody.

The Military Rules of Evidence mandate that "[a] person subject to the code who is required to give warnings under Article 31 may not interrogate or request any statement from an accused or a person suspected of an offense without first: (1) informing the accused or suspect of the nature of the accusation; (2) advising the accused or suspect that the accused or suspect has the right to remain silent; (3) advising the accused or suspect that any statement made may be used as evidence against the accused or suspect in a trial by court-martial."18

The rights advisement will be required when a member under the jurisdiction of the UCMJ is questioning a suspect about a crime.19 Thus, the key factor in determining whether a military member receives the warnings is based upon the perspective of the person asking the questions.20 The Military Rules of Evidence do not identify the person who must provide the rights, leaving that issue to be decided by the appellate courts.21 Because of this, two cases have been instrumental in deciding "who" the person is that must give the rights.

United States v. Duga developed a two-part test to determine the circumstances under which the questioner is required to give the Article 31 Rights to a suspect.22 In the case, Airman First Class Duga had been under investigation for stealing a canoe.23 A fellow police officer and friend had been told by investigators to help provide them with information about Airman First Class Duga.24 The two engaged in a friendly conversation, and Duga made incriminating statements about the crime.25 Duga’s friend did not provide him with any rights about self-incrimination.26

As a result of the trial, the appellate court determined that a two-part test must be met in order for the person engaging in the questioning to read the rights: The first part is "[w]as the questioner acting in an official capacity or only out of a personal motivation?"27 The second part is "[d]id the person questioned perceive that the inquiry involved more than casual conversation?"28 If both conditions are met, then the warnings against self-incrimination must be given.

Critics assert that the second case, United States v. Loukas, disintegrates the meaning of Duga and broadens the circumstances when warnings are not required - the Loukas court "apparently abandoned the Duga test and emphasized that Article 31(b) warnings are not required unless the interrogator is questioning a suspect about an official law enforcement investigation or disciplinary matter."29 In Loukas, the accused service member experienced hallucinations aboard a military flight. 30 A member of the crew asked him if he had taken anything and Loukas responded that he had used cocaine the night before.31 As a result, "questioning of the accused by his superior about possible drug use while both serving on a flight crew did not require warnings where the questions were not part of an investigation or inquiry."32 When an accused service member is placed into custody, he or she is afforded the right to have counsel present during an interrogation.33 Military Rule of Evidence Rule 305 (d)(1)(A) deals with this situation34 and provides as follows: "[w]hen evidence of a testimonial or communicative nature within the meaning of the Fifth Amendment to the Constitution of the United States either is sought or is a reasonable consequence of an interrogation, an accused or a person suspected of an offense is entitled to consult with counsel as provided by paragraph (2) of this subdivision, to have such counsel present at the interrogation, and to be warned of these rights prior to the interrogation if…35" certain conditions are met dealing with the individual who is conducting the questioning. The triggering of these warnings is given as a result of an accused’s placement into custody and the engagement of an interrogation.36

Under the circumstances of the Article 31 Rights, because the military member being questioned is not in a custodial situation at the point of initial suspicion, the Article 31 warnings do not address the right to counsel.37 Typically, Air Force interrogators provide the rights to counsel warnings in the standard AF Form that is given to those making a written statement.38 However, it is not mandatory that they do so. Thus, the difference between the military and civilian setting in determining at what point rights are read to a suspect is profound. The moment a military member is suspected of a crime, he or she must be given Article 31 warnings against self-incrimination.

The key difference between the Illinois legislature’s interpretation of when a rights advisement should be given and that of the military is the role of "custody" in an interrogation. It begs the question of whether some level of warnings should be given during a Terry stop. The drafters of the UCMJ have determined that even if a suspect is not in custody, and if they are suspected of committing a crime, they are still entitled to a rights advisement. Custody becomes that tipping point between the civilian world and the military practice for when an advisement must be given. And though the point is narrow and riddled with distinction, it is an aspiration that those who are suspects in a certain situation be afforded some level of awareness about the process and its effects.

1 Howard B. Eisenberg & Ralph Ruebner, Confessions 188 (Ralph Ruebner ed., 4th ed., LexisNexis 2004), noting that "[t]o overcome the inherently coercive nature of police interrogation, the Supreme Court in Miranda specified that before any statement obtained from a suspect who was in custody could be admitted, the police had to inform the suspect of the right to remain silent and the right to counsel and obtain a valid wavier of those rights."

2 Id, citing Miranda v. Arizona, 384 U.S. 436 (1966).

3 725 ILCS 5/103-2.

4 Id. at 191.

5 725 ILCS 5/103-2.1.

6 Eisenberg & Ruebner, supra, n. 1 at 192.

7 Id. at 192.

8 Id. at 193.

9 Id. at 198.

10 Id.

11 Id. at 199.

12 Id.

13 Major Edward Gray, Article 31, Confessions, and the Right to Counsel, in Military Justice Deskbook 10-2 (Air Force Judge Advocate General School Press, September 2004, Also note that because the Uniform Code of Military Justice applies only to service members, the rights that are being addressed apply only to those individuals who are in the military. See 2005 MCM Rule 2-202 and the following discussions for more information on the types of personnel who must follow the code.

14 Id.

15 Id. at 10-3.

16 Article 31 of the Uniform Code of Military Justice is divided into four parts. First, "[n]o 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 himself." 10 U.S.C. § 831(a) (2005). Second, "[n]o 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 a court-martial." 10 U.S.C. § 831(b) (2005). Third, "[n]o 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." 10 U.S.C. § 831(c) (2005). Last, the UCMJ notes that "[n]o statement obtained from any person in violation of this article, or though the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial." 10 U.S.C. § 831(d) (2005).

17 Stephen A. Saltzburg, Lee D. Schinasi, & David A. Schlueter, Military Rules of Evidence Manual, 3-154 (5th ed., LexisNexis 2003).

18 Mil. R. Evid. 305(c). Saltzburg et al, supra n. 16 at 3-154.

19 Gray, supra n. 13 at 10-4.

20 Id. Saltzburg et al, supra n. 16 at 3-154.

21 Saltzburg et al, supra n. 16 at 3-154

22 Gray, supra n. 13 at 10-4.

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

24 Id.

25 Id.

26 Id.

27 Gray, supra n. 13 at 10-4.

28 Id.

29 Saltzburg et al, supra n. 16 at 3-155.

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

31 Id.

32 Saltzburg et al, supra n. 16 at 3-155.

33 Gray, supra n. 13 at 10-3. Saltzburg et al, supra n. 16 at 3-156.

34 Saltzburg et al, supra n. 16 at 3-156.

35 Mil. R. Evid. 305(d)(1).

36 Saltzburg et al, supra n. 16 at 3-156

37 Gray, supra n. 13 at 10-4.

38 Gray, supra n. 13 at 10-3.

Trevor J. Orsinger, Captain, United States Air Force

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