In an unpublished decision in United States v. Ahern, No. 20130822 (A. Ct. Crim. App. Aug. 24, 2016) (link to slip op.), a three-judge panel of the Army CCA interprets Mil. R. Evid. 304(a)(2) which states:
Failure to deny an accusation of wrongdoing is not an admission of the truth of the accusation if at the time of the alleged failure the person was under investigation or was in confinement, arrest, or custody for the alleged wrongdoing.
At issue is the trial counsel’s closing argument that the appellant’s failure to deny sexual abuse of his step-daughter during a pretext phone call with the child’s mother was “because he is guilty.” This issue sparked a lot of discussion when I noted the CCA’s oral argument of the case in this TWIMJ post.
The CCA ultimately affirms the appellant’s child sex assault (and similar offense) convictions because the child’s mother “testified that appellant had repeatedly admitted to having sex with [the child],” the child herself gave “detailed testimony about his misconduct,” the appellant was not silent but rather called the mother’s allegations crazy, and “the same conversations that government counsel argued were evidence of guilt  were argued by appellant as evidence of his innocence.” Slip op. at 3.
But before reaching that conclusion the CCA makes a first-impression interpretation of Mil. R. Evid. 304(a)(2) and concludes that:
Mil. R. Evid. 304(a)(2) is triggered by an investigation when the accused is aware of the investigation. Whether an accused is aware of an investigation should be determined using the same objective test as is used in the Article 31(b) context. Jones, 73 M.J. at 362 [(CAAFlog case page)].
Slip op. at 11.
The CCA’s analysis is reproduced after the break.
[W]e determine that in interpreting Mil. R. Evid 304(a)(2), we should follow our superior court’s practice and look at the purpose of the rule, as well as the case law the drafters were intending to implement. Several considerations weigh in favor of taking this approach.
First, the drafter’s analysis to the Section III rules states that the rules “represent a compromise between specificity, intended to ensure stability and uniformity . . . and generality, intended usually to allow change via case law.” MCM, Section III analysis at A22-5 (emphasis added). That is, the drafters in some instances intentionally wrote the rules broadly with the expectation that case law would fill in the ambiguities.
Second, consider the President’s authority in crafting Mil R. Evid 304(a)(2). The President’s authority to promulgate rules stems from Article 36, UCMJ. However, this delegation of rule-making authority is not absolute. In crafting rules of evidence and procedure the President is required (“shall”), as long as it is practicable, to apply the rules governing criminal trials in the United States district courts. UCMJ art. 36(a). While the federal circuits are split on when an accused’s silence may be used against him, none provide for pre-arrest, pre-Miranda exclusions of the kind appellant seeks here. See Alameda, 57 M.J. at 198-99. No court asks, for example, whether there was an investigation of which appellant was unaware. It would be inconsistent with Congress’s delegation to the President to read the rule in a manner that is inconsistent with all federal circuits in the absence of a military specific requirement.
Third, and relatedly, Mil. R. Evid. 304(a)(2) is part of the President’s implementation of Article 31, UCMJ. As military practitioners are aware, from its inception Article 31 has not been interpreted literally. Article 31(b), UCMJ, if applied literally, “would potentially have a comprehensive and unintended reach into all aspects of military life and mission.” United States v. Cohen, 63 M.J. 45, 49 (C.A.A.F. 2006) (citing United States v. Gibson, 3 C.M.A. 746, 752, 14 C.M.R. 164, 170 (1954)). Accordingly, case law interpreting Article 31 provides a suitable framework for interpreting Mil R. Evid. 304(a)(2). That framework focuses not on a literal reading of the rule, but on its purposes. Article 31(b) rights, for example, are not usually triggered by undercover agents or by questions from persons unrelated to an investigation. United States v. Jones, 73 M.J. 357, 361 n.5 (C.A.A.F. 2014). As Mil. R. Evid. 304(a)(2) implements Article 31, it follows that the interpretive framework for Article 31 should follow.
Fourth, by focusing on the temporal trigger of when an investigation began, we lose sight of the touchstone of rules of evidence: reliability. If an accused makes an admission by silence under Mil. R. Evid. 304(a)(2), his admission is no more or less reliable based on whether there is–unknown to him–an investigation pending. The evidentiary weight of his admission, whatever it may be, is not any less simply because unbeknownst to him someone has begun an investigation.
Fifth, Mil. R. Evid. 304(a)(2) prohibits using admissions by silence whenever the suspect is “under investigation or was in confinement, arrest, or custody” for the wrongful act. For all practical purposes if someone is arrested, confined, or in custody, there is already an investigation. See generally R.C.M. 304, 305. Under appellant’s read of the rule, the triggers of arrest, confinement, or custody are rendered surplusage. An investigation, however brief, will always precede arrest or confinement.
Sixth, to the extent that prior cases have addressed this issue, they appear to have assumed that any investigation does not trigger Mil. R. Evid. 304(a)(2). In Clark the police arrived at the suspect’s house to conduct a search. Clearly an investigation was underway. Yet the CAAF’s decision focused on the investigator’s behavior after entering the house. United States v. Clark, 69 M.J. 438, 441 (C.A.A.F. 2011). If the investigation triggered the exclusions of Mil. R. Evid. 304(a)(2), then there would be little point in discussing when the suspect became aware of the investigation.
Finally, appellant’s interpretation of Mil. R. Evid. 304(a)(2) will result in increased and unnecessary litigation in some (limited) circumstances. While it is often easy to factually determine when an investigation began, it is not so easy to determine when a statement was made. So, assume an investigation began at noon on a Tuesday. That same day, the suspect made an admission by silence to a friend under Mil. R. Evid. 304(a)(2). Under appellant’s theory, the admissibility of the statement would turn not on its reliability or the accused’s subjective belief that he was under investigation, but rather whether which side can prove by a preponderance of evidence that the admission by silence was made before or after noon. Real life conversations are seldom contemporaneously recorded and documented with sufficient rigor.
Accordingly, we find that Mil. R. Evid. 304(a)(2) is triggered by an investigation when the accused is aware of the investigation.
Slip op. at 9-11.