Thanks to all for the lively discussion on Patterson below.
Phil makes a very important point in the comments which went unappreciated, it seems. The relevant precedent for this type of police conduct is Missouri v. Seibert, 542 U.S. 600, 616 (2004). There, police elicited an unwarned confession, recited the warnings, then asked the defendant to merely repeat what he had said before the warning, as if nothing had changed. The plurality wrote: "At the opposite extreme are the facts here, which by any objective measure reveal a police strategy adapted to undermine the Miranda warnings." This was a 4-justice plurality, but there is no Supreme Court case since, and therefore Seibert's plurality is thought to be close-to-binding on lower courts by those who study criminal procedure. Techniques that objectively evidence an intent to evade the protections of Miranda are themselves violations of Miranda. The conduct in this case seems to fit squarely in this category. The fictitious distinction between "suspect" and "accused" was designed to dupe the defendant into thinking that warnings were not yet needed, since he was merely a "suspect," and not yet before a judge. Of course, all lawyers should know that the Miranda guarantees attach long before a defendant is in court. What happened here violated Miranda/Seibert, and therefore violated Article 31 a fortiori. After all, the military has long bragged that Article 31 is broader than Miranda in its protections. Police are allowed to use deception, and even to lie to suspects (unlike in Europe), but they cannot lie about the nature of the rights regarding self-incrimination. "There is an absolute prohibition upon any trickery which misleads the suspect as to the existence or dimensions of any of the applicable rights or as to whether the waiver really is a waiver of those rights." § 6.9(c) Conduct of the police, 2 Crim. Proc. § 6.9(c) (4th ed.) Update: "in Europe" refers to the PEACE_method_of_interrogation. PEACE-A-Different-Approach. (The article notes that "The P.E.A.C.E Framework has evolved and since been adopted by numerous Police forces and agencies worldwide including the United Kingdom, Canada, Hong Kong, Australia, New Zealand, Singapore, Malaysia, United Arab Emirates and the Republic of Ireland.") Six Helpful Articles on the PEACE Method. Provocatively, this piece suggests that "[T]he Reid model resulted in a false confession rate of 50% compared to 0% with the PEACE model."
12 Comments
United States v. PattersonUnited States v. Davis (ACCA). The Games NCIS Play. The lead agent began the rights advisement by saying, "Before we can talk to you, we just have to go over this form with you, okay?" He described it as "[n]ot a scary form" and "just a piece of paper." United States v. Patterson, No. 202200262, 2024 CCA LEXIS 130, at *13-14 (N-M Ct. Crim. App. Apr. 4, 2024). This issue of NCIS trickery has arisen in a number of DoN cases. Watch for it. While appellate courts, including the Supremes, have said it's OK for investigators to lie during interrogations, not every lie or misleading statement is tolerated. In this case, NMCCA found the lie substantially prejudicial. Even if we assume the rights advisement did not violate Article 31, we would still find, under the totality of the circumstances, that Appellant's due process rights were violated and that his statements to NCIS were not voluntary. Because of NCIS, NMCCA set aside a conviction in a serious case.
A Marine noticed a pen on the floor under a radiator in a male locker room. The Marine's examination of the pen found that it was not an ordinary pen because it had lights on it, what appeared to be a microphone, and an SD card inside. An NCIS agent, with the assistance of an NCIS Digital Forensic Examiner, conducted a review of the SD card's contents. The review revealed a video of Appellant manipulating the device, looking directly at the camera, and placing it under the radiator where it was found. The content review also revealed numerous videos of what appeared to be Appellant engaged in consensual sexual intercourse with unknown men. There were deleted folders with names such as "Marine1," "Big Asia," "Big Asian Dude," and "Mexican Dude." Within the deleted folders, there were two videos of a male later identified as Captain J and one video of a male later identified as Captain C completely naked in their respective bedrooms. "No. 24-0126/OT. In re Paul Raymond Theriault, Petitioner. Notice is given that a request for reexamination of Petitioner's case was filed on March 26, 2024, and placed on the docket this 4th day of April, 2024. Petitioner has not presented any basis to believe that he was ever charged with any offense under the Uniform Code of Military Justice. On consideration thereof, it is ordered that said request is dismissed for lack of jurisdiction, and no further filings will be accepted or docketed by the Court in this matter."
In Re BM:
"The procedural posture in which we confront this certified question is unusual and perhaps unprecedented. Although the Judge Advocate General certified the question, the Government asks this Court to answer the question in the negative and to affirm the NMCCA’s decision. The Government does not seek any relief from this Court based on this certified question.... " Read the opinion here. As the Court acknowledges, the ban on advisory opinions only applies to Article III federal courts, but it has adopted it "as a prudential matter." Many state high courts issue advisory opinions. International tribunals also do this. Another Article I court has noted that its ban on advisory opinions is self-imposed. Mokal v. Derwinski, 1 Vet. App. 12, 15 (1990). So: Is this self-imposition a good thing? "Article I courts, like courts created under Article III of the Constitution, derive their authority and their limitations from the Constitution. One such limitation, necessary for the protection of democratic liberty, is that bodies exercising the judicial power be confined to dealing with real disputes in concrete factual settings. This protects the people against the danger that unelected judges will engage in broad public policy making, contrary to our notions of popular government. Freytag v. Commissioner, 501 U.S. 868, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991)." Matter of Dep't of Def. Cable Television Franchise Agreements, 35 Fed. Cl. 114, 115–16 (1996). Is CAAF issuing advisory opinions a threat to democracy? The stage is now set for an appeal to the D.C. Circuit--at least, once an opinion is issued by the DJ.
The issue is whether Judge Gregory Katsas's work in DOJ during the War on Terror disqualified him from ruling on a military commission appeal.
United States v. Richard, 83 M.J. ___ (CGCCA) |
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