An article entitled Ordered to Self Incriminate: The Unconstitutionality of Self-Report Policies in the Armed Forces, 78 A.F. L. Rev. 125, was recently published in the Air Force Law Review by Air Force Academy Assistant Professor of Law, Carman A. Leone (Major, USAF).

Professor Leone’s article offers a compelling argument that the Army, Air Force, and Coast Guard’s regulations requiring members to self-report their arrests by civilian authorities all run afoul of the Fifth Amendment.

The article first recounts CAAF’s 2010 anti-climatic look into the question in United States v. Serianne, 69 M.J. 8 (covered here and here). In that case, the Court never reached the question it granted review of – whether the Navy Chief’s conviction for having failed to self-report his DUI arrest was an unconstitutional violation of his right against self-incrimination. Instead, the Court expressly side-stepped that constitutional question and instead set aside Serianne’s conviction because the order that he was convicted of violating had actually been rendered null and void by the existence of a directly contrary superior Naval regulation.

CAAF did not hit the nail squarely on its head until 2014, in United States v. Castillo (Castillo I)(CAAFlog case page). By then, the Navy had updated its regulations to address the concerns that had boiled to the surface during the litigation of Serianne. Specifically, the amended Navy regulation added language which forbade superiors from questioning service members who self-report their arrests, expressly affirmed that members have no obligation to disclose the underlying facts leading to their arrests, and further forbade commanders from disciplining those members for the offense underlying their arrest unless that action was based solely on independent evidence. CAAF found those caveats to be sufficient to protect the right against self-incrimination.

The court emphasized several times that the safeguard against further questioning or military prosecution was integral to its determination.

Ordered to Self Incriminate at 140.

After setting the background by discussing Serianne and Castillo I, Professor Leone next sets about analyzing whether the other services’ self-reporting regulations bear the hallmarks that allowed the Navy’s regulation to eventually pass constitutional muster. He finds that they all fall short.

Namely, all regulations other than the Navy’s fail to protect military members who do self-report from having that testimonial act used against them.

Aside from that defect, Professor Leone’s article shows that the services are also woefully non-uniform in their requirements. Even internally. For example, the Air Force has three separate regulations that require self-reporting, but all three conflict with each other on such vital questions as which grades are subject to the regulation (ranging from all personnel to only those in the grade of E-6 or above) and the timelines for when the self-report must be accomplished (anywhere from within 72 hours to 45 days).

To remedy this lack of consistency, and to bring military practice across the services within the bounds of the constitution, Professor Leone proposes one ring to rule them all. His proposed language, embracing the best ideas from all of the services, follows:

Report of Conviction. All active duty and reserve members must report to their first-line supervisor, in writing, notice of a qualifying conviction of criminal law by any law enforcement authority within 15 days of verdict. Reporting is required for any criminal conviction received on or after [date regulation goes into effect].

a. Content of report. The information that must be disclosed includes the name of the member, rank, unit of assignment, date of conviction, case number, the basis of the conviction (e.g., DUI) and disposition/judgment. No person is under a duty to disclose any of the underlying facts concerning the basis for the conviction.

b. Terms defined.

1. Qualifying conviction. For the purpose of this policy, the term “conviction” includes a plea or finding of guilty, a plea of nolo contendere or plea of no contest (which are pleas of guilt to the charge(s) without admitting guilt), and all other actions tantamount to a finding of guilty, including adjudication withheld, deferred prosecution, entry into adult pretrial intervention programs, and other similar disposition of charges.

2. Criminal law. A criminal law under this paragraph includes any military or other federal criminal law; any state, county, or municipal criminal law or ordinance; and such other criminal laws and ordinances of jurisdictions within the United States or in foreign countries. A minor traffic offense which does not require a court appearance does not qualify as a criminal law under this paragraph.

c. Uses. A qualifying conviction may be used by the member’s chain of command for administrative and regulatory purposes, including: security clearance adjudication, readiness and deployability purposes, assignments, and potentially separation from the service. No person may use any required report under this section for purposes of taking punitive action against the member under the UCMJ. Further, if a member is administratively separated as a result of the self-report, command may not use the self-report or evidence derived from it when determining service characterization if the sole purpose for administrative separation is based on the self-report. The burden is on the government to prove by a preponderance of the evidence that evidence used in prosecution or separation of a member with any service characterization other than honorable which relate to the reported conviction was independently obtained and not derivative of the self-report.

17 Responses to “Scholarship Saturday: Damned if you do – service regulations requiring members to self-report their arrests by civilian authorities”

  1. DCGoneGalt says:

    This looks like a great article (I’m only about five pages in – which is usually when I give up on law review articles so this one held my ADD-riddled interest for longer than normal).
     
    I’ve always (honestly, only had this occur twice) advised folks to report because of the risk in relying on what I thought were inconsistencies in the guidance.  Never even considered the constitutional angle.  Although as a Chief if Justice I once dealt with a case that triggered both the reporting requirement and the “what does a commander have to do with a report” requirement.  There wasn’t much guidance on the commander action requirement other than the standard mandatory discharge/Lautenberg requirements.
     
    FYI – Link goes to the middle of the article.  Scroll up the beginning, it’s worth the read.

  2. Duderino says:

    Great topic. I’m interested in the interplay between the judicial/admin portion and the security clearance aspect. 
    Everyone is required to report all arrests, charges, and convictions for security clearance purposes. (Even civillian employees) 
    often Commanders are involved with the decison to suspend security clearances. 
     
    Thinking like a true 2018 DOD affiliate: perhaps the service jags should create a reporting tool on their respective JAG websites that wil take the correct i for nation needed and then distribute that information to both arms (command and personnel security) and also ensure each arm only receives the details and facts necessary for their area of responsibility?

  3. Nathan Freeburg says:

    That the reporting requirements are unconstitutional has been the nearly unanimous belief of the defense bar since they were instituted. Good to see something that might raise the issue for government types. 

  4. Isaac Kennen says:

    Link is fixed – should plop you on the first page of the article now.  Thanks!

  5. stewie says:

    I’ll play Devil’s Advocate. Being arrested isn’t a crime in and of itself. The reporting of same (in and of itself) is not evidence of a crime. So why would self-reporting it be incriminating? There’s no admission. There’s no evidence turned over. Any evidence gained by the government (whether state or federal/military) won’t come from the accused.

  6. Vulture says:

    When you play for the Devil, does he let you take a knee during the national anthem?

  7. stewie says:

    No, he makes racist comments while repeatedly attacking a simple protest while ignoring or supporting things 1000 times worse.

  8. Advocaat says:

    This was a very good article that explains why the differing service policies violate the right against self-incrimination while providing MDCs with a roadmap with which to advise their clients–I hope every defender reads it (I can’t imagine why a client would report their own arrest or conviction but if they did so after being fully informed, that is their choice).  The article also provides a cure for the government, which will go unheeded.

  9. Nathan Freeburg says:

    “I’ll play Devil’s Advocate. Being arrested isn’t a crime in and of itself. The reporting of same (in and of itself) is not evidence of a crime. So why would self-reporting it be incriminating? There’s no admission. There’s no evidence turned over. Any evidence gained by the government (whether state or federal/military) won’t come from the accused.”
     
    Seems like this is the inverse of the dual sovereignty argument.  If the military can prosecute for the same things that the civilians are prosecuting, then it follows that reporting a civilian arrest/investigation or conviction is by definition, self-incriminating.  (And the information comes from the service member under the same logic that we suppress the root of the poisonous tree.)

  10. Rodeo says:

    This is an area ripe for defense exploitation. I wrote a motion arguing that a charge for failure to report under the Navy Regulation was superseded and thus invalid when the accused was “at the point of Notice (allegedly) involved in such offense” and therefore under no duty report under their 5th Amendment rights. Within hours the government had offered a very favorable NJP board protection deal and withdrawn charges.

  11. stewie says:

    Again, what incriminating information is given by simply giving information of an arrest with nothing more?
     
    I was arrested last night by the ___ Police. If that’s all that is said…there’s nothing incriminating there. I would say if he’s required to say why he was arrested or give any information other than I was arrested, that would be incriminating.
     
    The law review article talks about the Army’s possible use in an administrative hearing, but an administrative hearing isn’t a trial. So how is the Fifth Amendment implicated? I can see an argument that Article 31 is implicated (after all, if you are asking the question or simply put in a regulation that basically asks the question for you, it’s functionally the same thing), but the Fifth is less clear to me.
     
     

  12. Isaac Kennen says:

    Testimony may not be compelled from an accused unless it can be shown that it will neither be used “as a basis for, or in aid of, a criminal prosecution.”  Brown v. Walker, 161 U.S. 591, 597 (1896) (emphasis added). “[N]o man’s conscience ought to be racked by oaths imposed, to answer to questions concerning himself in matters criminal.”  Miranda, 384 U.S. 436, 459(1966).  “[T]he . . . Fifth Amendment guarantees against federal infringement — the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence.”  Schmerber v. Cal., 384 U.S. 757, 760-761 (1966).  
    “[T]he privilege protects an accused . . . from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.”  Id. at 761.  “It is clear that the protection of the privilege reaches an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications[.]”  Id., 384 U.S. at 763-764. “[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him.”  Holt v. United States, 218 U.S. 245, 252-253 (1910).  “It is extortion of information from the accused himself that offends our sense of justice.”  Couch v. United States, 409 U.S. 322, 328 (1973).  
    A restrictive reading of the right to silence would “deprive [it] of half [its] efficacy, and lead[] to gradual depreciation of the right, as if it consisted more in sound than in substance.”  Boyd v. United States, 116 U.S. 616, 635 (1886).   A restrictive reading of the right to silence would also render U.S. Const. amend. V “as easy of application as it would be deficient in efficacy and power.  Its general principles would have little value and be converted by precedent into impotent and lifeless formulas.  Rights declared in words might be lost in reality . . . The meaning and vitality of the Constitution have developed against narrow and restrictive construction.”  Weems v. United States, 217 U.S. 349, 373 (1910). 

  13. stewie says:

    right, but if there’s no trial contemplated, then the Fifth isn’t triggered necessarily, i.e. “it can be shown that it will neither be used ‘as a basis for, or in aid of, a criminal prosecution.'”
     
    That wouldn’t include administrative procedures.
     
    Now, Article 31 is broader than the Fifth Amendment, so I can see an argument that this regulation simply does an end around of that rule.

  14. Isaac Kennen says:

    “It is impossible that the meaning of the constitutional provision can only be, that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself.”  The Fifth Amendment may apply to such cases, “but it is not limited to them.”  The Framers’ intent was broad: that a “person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime.” It is true that the text of the Fifth Amendment limits the privilege “to criminal matters, but it is as broad as the mischief against which it seeks to guard.”
     
    Counselman v. Hitchcock, 142 US 547, 562 (1892).

  15. stewie says:

    That quote doesn’t tell me or lead me to believe it’s broad enough to include administrative matters.
    Does the fifth amendment apply to firing actions? What about civil suits where you could lose significant money or property?
     
    Seems clear to me that mere deprivation that doesn’t involve loss of physical liberty isn’t enough to trigger it, and loss of financial or property interests isn’t enough to either.

  16. Dew_Process says:

    The article is a good starting point, but it didn’t go deep enough, e.g., derivative evidence, compelled production triggering immunity, etc.
    Here’s a LINK to another aspect of the issue by Prof. Saltzburg, and a more historical analysis HERE.

  17. Vulture says:

    This isn’t a straw-man argument.  This is a Wicker Man argument.