Navy Times on Serianne
The No Man previously wrote about NMCCA’s en banc opinion in United States v. Serianne, No. 200900330, __ M.J. __ (N-M Ct. Crim. App. Nov. 25, 2009). here. Serianne held that OPNAVINST 5350.4C’s requirement that servicemembers disclose arrests for driving under the influence impermissibly ”compels an incriminatory testimonial communication.” Here’s a link to a Navy Times article about the decision quoting — the No Man, who predicts that the Judge Advocate General of the Navy will certify the case to CAAF.
Has any commentator presented a cogent argument explaining why NMCCA may be wrong? As a practical matter, voiding this order will have little effect. Arrest reports are routine at competent commands; sailors and Marines will have to ask for “time off” to attend court, and such requests, when required in THAT form, are permissible. In addition, court dates are public records and non-incriminating. In other words, an OPNAV instruction could be “tweaked” to require reporting of impending court dates or attendance. Otherwise, this case is a tempest in a teapot. I am assuming the only reason JAG would certify to CAAF would just be a courtesy to our sister branches to clearly publish the 5th Amendment as the law of the land – even in the military.
Playing devil’s advocate, I think an argument that it is not a 5th Amendment violation is that the offender is not being required to provide the underlying facts of the alleged offense, and is required only to report an arrest which is a matter of public record. There are plenty of laws that may have secondary or tertiary incriminating consequnces but don’t implicate the 5th Amendment. For example, laws requiring that drivers remain at the scene of an accident. In addition, I believe requiring a military member to furnish his ID card at the scene of crime has been found not be testimonial even though that has very incriminating consequences.
I invite further legal discourse on point, not ad hominem attacks!
I thought it was curious that the NMCCA didn’t mention mandatory fingerprinting, DNA sampling, handwriting sampling, and the other “disclosures” that may be required of an individual without infringing on the 5th Amendment.
Well, using Occam’s razor to analyze this issue, I would keep it simple and old-fashioned: “Saying” something – with your mouth – or a pen – should be the most protected form of self-incrimination. All the other examples reflect “incidentals,” where the person is not being put in the position to A) evaluate their own conduct; B) assess the criminality of their own conduct; C) report their own conduct. Staying at an accident; DNA; handwriting; etc. do not put any particular burden on the person to speak. I would keep the analysis simple and be cautious not to create an exception that swallows the rule.
By the way, Anonymous, you are a dispicable traitor! (…just kidding)
To answer your question about fingerprinting, DNA sampling, handwriting sampling, etc. you may want to see SCHMERBER v. CALIFORNIA, 384 U.S. 757 (1966).
“The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling ‘communications’ or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.”
Maybe I wasn’t cogent in my earlier comments.
The court held:
“[I]t was reasonable for the appellee to believe that the reporting of his own arrest would lead to further disclosure of incriminating evidence, namely, the evidence obtained during his arrest for driving under the influence of alcohol, and would not only provide a link in the chain of an investigation but more probably cause the initiation of a criminal investigation by the Navy into his conduct.”
In other words, if you “reasonably believe” that reporting something would “cause the initiation of an investigation,” you would never need to report anything that might reflect badly upon you.
This logic — a mutation of the holding in the cited case, Marchetti — undercuts many Navy reporting requirements, and would render them unconstitutional.
I again invite hypothetical application of this holding to Chessani. Whatever you think of the merits of LtCol Chessani’s failures, couldn’t he now simply cite Serianne and have his charges dismissed?
Now, uh no. I do not believe USMC is moving forward in the Chessani case.
But if they did, and if he did do as originally alleged, wasn’t his primary failure omitting to cause an investigation into suspected crimes of others, rather than failing to report his own misconduct?