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Waiver of PASI at trial
- “When an accused testifies voluntarily as a witness, the accused thereby waives the privilege against self-incrimination with respect to the matters concerning which he or she so testifies.” Mil. R. Evid. 301(e).
- By testifying on direct examination about an offense for which he is being tried, an accused does not, however, waive his privilege against self-incrimination with respect to uncharged misconduct at an entirely different time and place. United States v. Castillo , 29 M.J. 145 (C.M.A. 1989).
- Claiming the privilege during cross-examination. (1991), and the 1994 amendment of Mil. R. Evid. 305 that removed the language requiring notification of counsel whenever a represented suspect was questioned. Finch put the McOmber notification rule to rest, presumably once and for all. Neither McOmber , LeMasters , nor the current Mil. R. Evid. 305(e) addresses the ethical implications of dealing with “represented” parties. 200 If an accused or suspect is interrogated by a person required to give Article 31 warnings and the accused or suspect is in custody, or reasonably believes himself to be in custody, or is otherwise deprived of his freedom of action in any way, and requests counsel, any subsequent waiver of the right to counsel obtained during custodial interrogation concerning the same or different offense is invalid unless the prosecution can demonstrate by a preponderance of the evidence that: (1) the accused or suspect initiated the communication leading to waiver; or (2) the accused or suspect has not continuously had his or her freedom restricted by confinement, or other means, during the period between the request for counsel and the subsequent waiver. 211 Id . a. Mil. R. Evid. 301(f)(2): “If a witness asserts the privilege against self- incrimination on cross-examination, the military judge, upon motion, may strike the direct . . . , in whole or in part, unless the matters to which the witness refuses to testify are purely collateral.”22 b. If matters to which the witness refuses to testify during cross- examination are purely collateral, there is no right to have the witness’s direct testimony stricken. United States v. Evans , 33 M.J. 309 (C.M.A. 1991). c. United States v. Moore , 36 M.J. 329 (C.M.A. 1993). Military judge was within his discretion to strike the entire direct testimony of a defense witness following assertion of right against self-incrimination on cross- examination. d. United States v. Lawless , 13 M.J. 943 (A.F.C.M.R. 1982). A government witness testified he had assisted accused in weighing and packing marijuana but refused to testify about who had supplied the baggies and other packaging equipment. The military judge properly refused to strike the direct testimony since the information about the source of the equipment was collateral to the core of the direct.
- Confessional stipulations. United States v. Craig , 48 M.J. 77 (C.A.A.F. 1998). Entering into a confessional stipulation does not waive the accused’s constitutional rights against self-incrimination, to a trial of the facts, and to confront and cross-examine the witnesses against her.
- The impact of a guilty plea on PASI. a. Trial counsel are permitted to use a guilty plea to a lesser-included offense to establish elements common to both the greater and lesser crimes of a single specification. United States v. Rivera , 23 M.J. 89 (C.M.A. 1986); see also RCM 920(e). They may not, however, reach back to the providency inquiry to find evidence to condemn the accused from his own mouth on a separate offense. United States v. Craig , 63 M.J. 611 (A.F. Ct. Crim. App. 2006). b. Mitchell v. United States , 526 U.S. 314 (1999). The Supreme Court held that in the federal criminal system, a guilty plea does not waive the self-incrimination privilege at sentencing. The Court found that the protection of the Fifth Amendment privilege applies equally to the sentencing phase of trial as it does to the guilt phase, and that negative inferences cannot be drawn by the accused’s election to remain silent during the sentencing phase.