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.
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Audio of yesterday’s oral arguments at CAAF is available at the following links:
United States v. Evans, No. 16-0019/AR (CAAFlog case page): Oral argument audio.
United States v. Hills, No. 15-0767/AR (CAAFlog case page): Oral argument audio.
CAAF will hear oral argument in the Army case of United States v. Evans, No. 16-0019/AR (CAAFlog case page), on Tuesday, May 10, 2016, at 9:30 a.m. The case addresses CAAF’s application of two different tests to evaluate whether a violation of Article 31(b) caused prejudice to a substantial right of an accused, with the following issue that was specified by the court:
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?
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.
The false official statement convictions relate to statements Evans made during an investigation into his wearing of an unauthorized decoration (a combat patch). One statement was the submission of a dental x-ray purportedly taken at a clinic in Afghanistan, and the other was a memorandum in which Evans confirmed that he submitted the x-ray as part of the investigation and also asserted that he was treated by an Army dentist in Afghanistan. The memorandum, however, was obtained in violation of Article 31(b) when Evans was questioned by investigators without his attorney present. Nevertheless, the memorandum was admitted into evidence over the objection of the defense, and it was used as evidence to prove both false statement offenses.
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