Opinion Analysis: CAAF clarifies that Article 31(b) violations are tested for prejudice using the non-constitutional standard in United States v. Evans, No. 16-0019/AR
CAAF decided the Army case of United States v. Evans, 75 M.J. 302, No. 16-0019/AR (CAAFlog case page) (link to slip op.), on Monday, June 6, 2016. Resolving an inconsistency in its own precedent regarding the appropriate test for whether a violation of the Article 31(b) statutory right to remain silent is harmless in a particular case, CAAF explains that when only the statutory provision (and not also the Fifth Amendment right against self-incrimination) is violated then the violation is tested using the four-part test set forth in United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999). Finding that only Article 31(b) was violated in this case, CAAF affirms the decision of the Army CCA.
Judge Ohlson writes for a unanimous court. Notably, this is the first opinion of the court to include the recently-confirmed Judge Sparks.
A general court-martial composed of officer members convicted First Lieutenant Evans, contrary to his pleas of not guilty, of two specifications of making false official statements and one specification of larceny, in violation of Articles 107 and 121. Evans was sentenced to confinement for one month, total forfeitures, and a dismissal. On appeal, however, the Army CCA found that Article 31(b) was violated when Evans was questioned, and the CCA reversed one of the false statement convictions. But the CCA affirmed the other false statement conviction after concluding that the Article 31(b) violation was harmless with respect to that conviction. In so concluding, the CCA applied a certain four-part test for prejudice that balanced (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question. See United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999).
CAAF’s precedent, however, identifies another, more rigorous test for prejudice when Article 31(b) is violated: the erroneous admission of the evidence must be “harmless beyond a reasonable doubt.” United States v. Brisbane, 63 M.J. 106, 116 (C.A.A.F. 2006). This is a heightened standard that is normally reserved for constituional violations. And so CAAF granted review in this case to determine which standard applies in this case, with the following issue:
Where the Army Court of Criminal Appeals found evidence was admitted in violation of Appellant’s Article 31(b), UCMJ, rights, did the court err in applying the Kerr prejudice test as opposed to the Brisbane harmless beyond a reasonable doubt test?
In today’s opinion Judge Ohlson acknowledges that the court’s precedent has been inconsistent, however he explains that as Article 31(b) is merely a statutory (as opposed to constitutional) provision, its violation need not satisfy the heightened standard applied to constitutional violations in order to be found harmless. He explains that:
violations of Article 31(b), UCMJ, must be viewed as falling into one of two distinct categories: either (a) purely statutory violations; or (b) statutory violations that also present a constitutional violation. This dichotomy then leads us to the following determination about the appropriate prejudice test that must be applied in each instance: (a) purely statutory violations must be tested for prejudice under the factors provided in Kerr; and (b) statutory violations that also present a constitutional violation must be tested for prejudice under the “harmless beyond a reasonable doubt” standard, as was done in United States v. Brisbane, 63 M.J. 106, 116 (C.A.A.F. 2006).
Slip op. at 7. Furthermore, “any precedent to the contrary is hereby abrogated.” Slip op. at 7.
Then, as “the facts of this case reflect a statutory violation of Article 31(b), UCMJ, and not a constitutional violation under the Fifth Amendment,” Judge Ohlson concludes that “the CCA Accordingly, we hold that the CCA correctly applied the nonconstitutional test for prejudice.” Slip op. at 9.
Judge Ohlson’s opinion is straightforward and logical, but somewhat anti-climactic. A footnote reveals that:
we are aware of no instances where this Court has applied the nonconstitutional test for prejudice to an Article 31(b), UCMJ, violation that implicated constitutional rights. However, it is apparent that we have applied the constitutional test (i.e., the “harmless beyond a reasonable doubt” test) to purely statutory violations under Article 31(b), UCMJ. See, e.g., United States v. Guyton-Bhatt, 56 M.J. 484, 487 (C.A.A.F. 2002); United States v. Pittman, 36 M.J. 404, 408 (C.M.A. 1993).
Slip op. at 7 n.6. It would have been surprising if CAAF had concluded that Article 31(b) violations must henceforth be tested using the heightened, constitutional standard.
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