Procedural Rights of the Military Accused: Advantages Over A Civilian Defendant

• Author: By Lieutenant Homer E. Moyer, Jr.
• Pages: 01

The authov CGmpares the military and cizilian prGcedUTe

at sewed Sfages in the erin~iwzl process; iitterrogntioz

teal, right to CGunSd, witn deferment of confinement, npi

I. INTRODUCTIOS

The Supreme Court recently decided in O'Cdlnhathat the military lacks jurisdiction to try servicemethat are not "ser\.ice-connected."' Justice Douglas, in rendering the majority opinion, was highly critical of military justice and criminal procedures in the court-martial system. a-hich he characterized as "a system of specialized military coalts. aroceeding 11v practices different from those obianling in the regular courts and in general less favorab'e to defendants . ,"' The oyinior further added that "courts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law , . . . A civilian trial, in other u-ords. is held in an atmosphere con-ducive to the protection of individoal rights, while the military trial is marked by the age-old manifest destiny of retributive

menta1 agency.

**Lieutenant Enited Smtes sary. Adu:mry Lesa1 Branch. Xditary J11-flee Divimon, Office of Tte Judge Advorare General of The Uavs, B 1.,1961, Emory Univerrlty, LL.B.. 196:. Yale UmVerrlty.

' 395 U.S. 268 (1969).

' Id. at 272.

I

Id. at 266.

justice."' The Court then quoted approvingly: " 'Sone of the traveaties of justice perpetuated under the UCMJ 1s really wry surprising, far military law has always been and continues to be primarily an instrument of disciphe, not justice.ment of military justice was unmistakable; the partrat PBS of an institutionalized system of quasibcourts before which BX accused is systematically deprived of fundamental rights. The recurrent implication was that any accused wuld eagerly seek to escape mi!itary jurisdictior for the comparative hat en of a civilian trial.

Within 30 dars after O'Callahan, The Judge ddvocate General of the Army received a letter from B serviceman tned and convicted in a civilian court for manslaughter. The crime was cammitted on a military reserration. The letter complained of the conduct of the writer's civilian trial including the denial of counsel, militat) or otherwise, and expressed bitterness that the military had not been able to take jurisdiction of the offense.* The letter ix-as, of couise, a plea from one incarcerated man and, to be sure, some accused servicemen haw sought to bar the eser. cise of military jurisdiction an the basis of O'Cnllnkan.' Konerheless, the petition of this ex-serviceman and his dissatisfaction with his civilian trial may more truly reflect the realities of a thorough compariaor. of militar5 and cirilian criminal procedure than do the braad aasertions of Xr. Justice Douglas.'

' Id. at 265-66.' Id. at 266 (quatmg Gla~ser, Jiillt;ee and Captain Le&#. 12 COLI\%\ F 46. 19 (1969)l.

' Letter to The Judge Advocate Gereral of the .?on). 30 June 1968 on f.le .n the \Iil.fary d s t ce D.v.%lon o i the Offlce of The Judge idroca-e Ger.eral of fre Army.

PROCEDURAL RIGHTS 11. INTERROGATION OF SUSPECTS

The point at which the criminal suspect is first confronted with the criminal process (when he is first approached by law enforce. ment officials) is a logical place to begin consideration of a mili-tary suspect's rights and to observe how they compare with those of his civilian counterpart. The rule8 which must be observed when police question a civilian suspect were fashioned by the Supreme Court decisions in Eseobedo 1). Illinois' and Miranda u. Arizona.* Opposition to these decisions was outspoken and bitter, and predictions were common that law enforcement would be hopelessly disrupted." The 1964 holding in Escobedo that a suspect under interrogation be allowed to consult with his attorney if he so desires had widespread impact in civilian jurisdictions." In the military, however, this historic decision occasioned little comment and no change in procedures since the rule of Eseobedo had been standard military practice far seven years." Indeed, the appellate defense counsel, who successfully argued Escobedo before the Supreme Court, was B former military lawyer, and he sought simply to obtain for his client the same rights accorded his clients in the military."

Two years after Eseobedo. the Supreme Court decision in Yirnnda enumerated the specific elements of a warning that must be given to a suspect prior ta custodia! interrogation," Before Miranda, specific advice of rights was foreign to civilian jurisdictions, and admissibility of confessions turned upon application of

378 U.S.

478 (1964).384 U.S. 436 (1966)

'' See, e g., Symposium-The Supreme Court and the Police: 1966, 57 J.CRIM. L.C & P.S. 237-312, 371.425 (19661; Inbau, Miacoscoption Regadmg Lawiessns8~ nnd Low Eriio7remmt. 35 TEXX, L. REV. 671 (1968).

I' See, e.*., Pairell, An Crgent Seed' More Efisotzae Cnmtnal Justice, 51 A . E . . U 437, 139 (1965).

I '

In United Stater r. Gunneis, 3 U.S.C.>l.I. 130, 23 C.Y.R. 354 (19571. the court found prejvdmal error when a suspect, was reieased upon rewee- during mterragafmn, vas denied ad\-ice by rhe staff judge advocate from rhom he sought aaniatanee. Four months later in Umted Stares Y.

Rose. 8 T.S CI..A 441, 24 C.P.R. 261 (19671. the court held madm

B canfession obtamed after a ~ u ~ p e e t requested, during interrngation, to

cansuit his alrorney and government agents refused his request, advising him that he had no right to euniuli wth an attorney, See also Hensen, Mi7a7do end the .lfiltta7y Drtelapinrnt o i a Comtitrtionai Right, 42 MIL.

L REV.

55, 6D n. 34 (19681 [heremafrer cited BQ Hansen].

'' Barry L. Kroll, Esq., counael for Petinaner, Eseobedo Y. Illmoii, 378 U.S.

478 (1964).

a84 U.S. at 467-7s.

a

'j

the subjective test of roluntminesd' 3liiltary practice, however, had been goreined by article 31 of the Uniform Code of hlilitary Justice (UCXJ), which required that any suspect must be ad-vised prior to questioning as to the offenses which he 1s sus-pected to have committed, that he has a ripht to remain silent, and that anything he say3 may be used against him at trial.

It is instructive to note that this was the milmr? practice for 18 years before there emerged an equivalent cirilian rule, a m e that was judicially imposed upon a vocally resistant civiiian sector.

The .Iltrniidn decision, hoirerer, did indude one requiiement not covered by article 31 of the CCBIJ, the requirement that prior to custodial Interrogation the suspect be adviseright to hare counsel present. In Cndd States I . TentUnited States Court of Military .Appeals conrldered thebility of this requirement and held that the rule of >limndo \\-as fully applicable to the military The decision was held retroactive to the date of .Ili,andn. However, Tempiii did not relieve military interiogators of the requirement that premteilogation adrice

Id a. 27'

several respects broader than that giren a civi!lan auspect: Arti-cle 31 advice most be giren before an official may interrogate, or request any stetement," a threshold which includes many Sitiiations that da not constitute custodial As a matter of practice, the full w.rning, including nght to counsel, is given tide 31 requires that the suspect be adnsed of the offenses of which he is suspected, a procedure that favor8 a suspect who has committed serera: offenses and that allows him to judge better how to respond TO mterrogation." Furthermore. the strictures of artic!e 31 apply not only to police offxers, but include prirate persons gathering evidence for the prosecution and persons exercising disciplinary authority ores the accused at the time of questioning." Finally, Mirondo requires that B sus-pect be adnsed that counsel ail1 be provided for him if he cannot afford one; in the military every suqiect is afforded a miiitar). lawyer free of charge and is speeiflca!lx so advised'. He 1s

further told that he may hare civilisii ~ounsel present, ahtained at his own expense.'

Furthermore, aipnificant developments hare taken place in the

'' The samp'e acknasiledgmenr of w h t i form mued h i the C 7. Navy,

(11 I m suspected of having committed tke folloaing offenseis1

[blank],(21 I hew the right to remain dent,

for e\amp1e lnclunel TL.e folla~vmg~

en, to Exobedo and Utrondn Civilian oppo-s has culminated in title I1 of the Omnibus afe Stieets Act of 1968- This legislation piirpo~

[s to OW ride the constitut.onai ~eqtinernent~of these

decisions, and the Department of Justice has begun to rely upon this statute 111 certain fedma! cases Eve,> if this legidation sur-wves judicial scrutiny on constitutional gioundn, however, mili-

Ill PRETRIAL INVESTIGATIOT

For a c i w ! m accused of a serious crime, another early stagein the crimirai piocebs at which ius rights and status may he affected IS the giand jury Investigation, or some other similai statutory piocedure. The Supreme Court's hddlng ~n O'Collohm vas based, in ;.xi, 0: rhr depiiration of the accused sei~~eman'3 right to indictment br grai ri jury . This rationale becomes some-what suspect when the rights of 81, accused beforQ a gland jury

1968. iS V.9.C. 8 350: shall be adm:;.;.ble inI mentlani fire iac:ors eler.e"ta of :'le n a m - le prerence or absence

:-to cors.derar:on b i

PROCEDURAL RIGHTS

are compared with those given a military accused at an article 32 investigation, the analagous military procedure.'

Both federal and state grand jury proceedings to determine whether to retam an indictment are commonly ex pnrta proceed-ings which are carefully kept secret.' In federal grand juries, disclosure of the proceedings of a grand jury has been severely limited by Supreme Court decisions u-hich have limited the judicial discretion that may be exercised under rule 6(c) of the Federal Rules of Criminal Procedure." Inspection of portions of grand jury minutes is contingent upon a showing of "particularized need," R carefully delineated criterion.Y Indeed, a federal defendant could cot even examine his awn testimony before a grand jury prior to 1966, when...