Miranda and the Military Development of a Constitutional Right

• Author: By Major Donald W. Hansen
• Pages: 03

This article contains an analusis of the Miranda decisionand how it afeets the iue of confessions in the wiiitaTLI The author disousses Miranda, its history, and its )e15!ion to castodiel interrogation and article 91 of the CnG

'tmy Jutioe. The author cotdudes that tary Appeal8 will give full effect to the

I. INTRODUCTION[Tlhe pm~ecutian may not me statementi, whether exculpatory

01 mulpintory, stemming from cusrodial intmrogation of the defendanr unle~s ~f demonstrates the use of procedural safeguards sffeetire to secure the priwlege against self-mimination. . . Prior to any guertiamng, the perion must be warned that he has a right to remain silent, that any statement he does make may be used 8s widenee against him, and that he has B nght to the presence of an sttornes, either retained 07 appointed.'

Miroiida decision.

With this terse summary of what was to follow, the Supreme Court, in Yzrarida v. Arizona: made the right to counsel an integral part of the interrogation process. There is little to be gained in tracing the ancestral lineage of Miranda,' nor its applicability to the military.' Suffice it to say that .Vira?ida PUKT h e opinions and eonelusions presented herein a?* those of the author and do not nec95881ily represent the view8 of The Judge Advocate Gmersl's School or any other governmental agency.

"JAGC, T.S. Army; Office of the Staff Judge Advocate, 1st Infantry Divirm, Vietnam; B.A.,

1956, LL.B., 1958, Colorado University; member of the Bars of the State of Colorado, the United States Court of Military Appeals. and the United Stales Svpreme Court.

' Miranda V. Arizona, 384 U.S. 436, 444 (19661. '384 U.S. 436 (1966).

The interested reader is invited to comport Ilr Justice White's diasenfing opmon. Id, at 526. uith Kammar, A Dasent From the Yirondo Dissmba. Some Cammenti oil ihr ".\-Y~W" Fifth Amendment and the Old "Voluntorinras" Test, 65 MICH. L. REV 59 (1966).

'United Stater V. Templa. 16 U.S.C.3l.A. 629, 37 C.M.R. 249 (1967). The Court of Military Appeals haa made it clear that embtirutional safe-KYards will be applied in "military tnale, except insafar BJ they me made

ported to sweep away the rather 'ague and subjective test of "roluntariness" under the due proms8 cIsuses. characterized by Justice Harlan, in his dissent. as ''an elaborate, sophisticated, and sensitive iipproach to admissibility af confessions." 1 In itr Place, the Supreme Court established absolute prerequisites of warnings and \raiver required by the Constitution. It was anticipated that rigid adherence to these new, definitive standards would lead lower courts to a correct resolution in cases inrolving disputed confessions, and obviate the necemity for them to re-viev those cases on a factual basin:

The shift from a subjective to an objective test was not new to the Supreme Court; it had occurred jujt before in the "right to counsel" cases. For example, in Betts F. Brady; the Supreme Court held that an indigent accused was entitled to the appointment of counsel in noncapital cases only nhen the "special circumstances" of the case indicated the absence of counsel would make the proceedings "fundamentally unfair." The Supreme Court, in speaking of the due process clause of the fourteenth amendment, said:irrerred demal [of due process] IS to be rested by an appraisalof the totality of facti in B given eale. That which may, in m e setting, constitute a demsl of fundamental famess, rhoekms to the universal sense of justice. may, ~n ather circumstances. and m lightof athe1 eonsideratmi. fall short of such denial.

Dissatisfaction with the "apecial circumstances" test led to its reexamination in Gideon v. Ti'ai?,unght, ' In the latter case, the Supreme Court overruled Befts, and held that the right to appointed counsel for noncapital felony cases was absolute under the sixth amendment and not dependent upon eialuation of "special circumstnncea." Thir resulted in an objective standard that was immediately applied by all lower courts.

Unfortunately, these lower courts have been unable or unwilling to apply the absolute requirements of .lfi,a,ida 111 a ~imilar,

inapplicable erther expressly or by neeesaary implieation." Id at 634, 37

C.M.R. at 254 For a ienea of military ernes adopting recent Supreme Court deenonr. see Bimbaum. ElieeL or Recent Supreme Coic,i D~crsions on ,ildctory Lax. 36 FORDHAM L. REI. 153 (1985).

.A molt comprehensive study of "valuntanned may be found in De~elap mente ~n the Lar-Canfrsaians. 79 HARV. L. REV. 935, 954-83 (1966)

; Miranda V. Arizona. 384 E.S. 436, 508 (1966).

The SuDreme Court granted eeirioraii "to rive concrete constitutional gvideliner fop law enforcement sgeneiec and courts to follow." Id. at 441.

'316 D.S. 455 (1942).

6 I2 "/ "GO

.L.

="".

"312 U.S. 335 (1963).

56 .AGO i8E6B

MIRANDA AND THE MILITARY

computer-like manner. Examination of such cases suggests that Mirenda raised more questions than it answered. Nevertheless, the Supreme Court has only once rendered an opinion regarding the attempts of such courts to deal with this new constitutional procedure."

On the other hand, the Court of Military Appeals has dealt with Miranda issues on a number of occasions. As a result, a substantial body of law concerning disputed confessions and the right to counsel exists far the militan. practitioner.'? This article will examine the right to counsel as it now exists in the military, compare the applicable language of Mirandm with the position taken by the Court of Military Appeals, and point out the ex-tension by the latter Court into areas foreseen by Miranda, but as yet unresolred by the Supreme Court. 11. MILITARY LAW PRIOR TO MIRANDAThe Cniform Code of .Wilitary Justice -'makes no provision for appointment of counsel prior to a pretrial investigation under the provisions of article 32.'' Therefore, whether the accused was provided a right to counsel at the interrogation stage had to be determined by the Court of Military Appeals." In general, military law developed along three of the lines ultimately resolved by the Miiranda-Tempia decisions: First, the right to appointed counsel at the interrogation stage: second, the right to be in-formed of such right: and, third, the right to the presence of such counsel at the interrogation stage.

"In Mathis V. United States. 36 U.S.L.W. 4379 !May 6, 1968), the Supreme Court held that the subject of a ''routine tax investigation" who uBB serving B state sentence muzt be warned in aecord.anee~with_,~lirond..

I* It e m be snficipated the Supreme Cowt will further amplify ita deeimn in .Virsnda because "bg the Parkmaon'a Law of Supreme Court deeisiana, one decision ~n one term begets three within a short span of yeam." George, ardo' Scope ot the Ezeiusionary Ruie, 39 U. Cola. L.

experience with People V. Darsdo, 62 Cal.Zd 360, 398 P.2d 361 (19663, prorider an additianal sowee of authmity for the re. searcher. It has been summarized in Graham, What $6 "Cutodro: Intrwoia-tton?'. Colifamio's Anttcipatory Applicction a/ Mirondo v. Arnona. 14U.C.LA. L. Rev. 59 (1968).

"10 U.S.C. 58 801-940 (1964) [hereafter called the Code and cited 81

UCMJI.

"UCMJ,

art. 3% provides in pertinent part: "The accused shall be sd. viaed . . . of his right 10 be represented st that investigation by counsel.Upon hi8 request he shall be represented by ei~ilian e0uns01 if provided by him, or military eound of hla own selection if such counsel be reasonably available. or by e~unsel appointed by the officer exercising general court-martial jurisdiction aver the command."

"Far a discussion of military law prior to Eaeobedo Y. Illinoia, 378 U.S.

Relying an precedent established by state and Supreme Couit decisions, the Court of Military Appeals, in Cnited States r. .lJloore, held that there was no ripht to appointed military counsel prior to the filing of charges. The rationale of this decision was d States v. Gi~nnels.'. where the Court distinmal proceedings. where the accused "iequires the guiding hand of coun~el at every step in the proceedings against him," I" from interrogation by a law enforcement agent, which is before the filing of charges. In the Court's view, the interrogation proteas was not a part of the "pretrial proceedmgs during which couniel investigates the facts and prepares his defense" '. within the scope of Powell v .liobanie.-' requiring the appointment of c o u n ~ :

The uninformed suspect was not entitled, as a matte, of right, to be infoirned of his rights to cowisel prarided he v-ar advised he could remain silent and the consequencea of foregoing that right:' However, if the suspect requested information concerning counsel, he was entitled to correct advice. This requirement \\as met If the Swpect were adaised that he could "consult with a law-yer of his choice or with the staff judge adrocate." As long as the interrogatoi did not give incorrect advice, any statement the accused made uas inadmissible only If it was found to be the result of a denial of counsel:

(1951).

287 C.S. 45 (1932). = A eompsrison betaeen Gilbert v. California, 388 C.S. 263 (1967), and Kade Y. United Stater. 388 U.S 218 (1967). indicates the Supreme Court is eurrentls following B similar approach where only the sixth amendmem is involved

3, 36 Ch1.R. 159 (1966).ted State3 T Diekson. 16 L! 92, 395. 37 C.Y R. 12. 16

After Escabeda \,. Illmaia. 378 L-.S, 478 t1964). the Court of Military Ap-peals appeared ro change this approach /I? indicated by thi. ereerpt from United States V. Houston, 15 U S C.XA. 239, 246, 35 C.hI.R. 211, 21: (19651 : "Finally. as -e have pointed out on many occasions. If an accused during the nwestigative pmeers rewshts 80 opportunity to consult with eo~nrel and 13 denied such, statements thereafter obtamed from him ~n the inieetipstion are inadmiaiible ~n evidence."

A00

As early a8 1957, the Court of Military Appeals indicated that a suspect could have his attorney present during the interrogation,?8 and that the failure to so advise the accused might be...