Military Law - Application of Miranda to Courts-Martial Admissions - U.S. v. Lincoln, 17 U.S.M.C.A. 330 (1967)
Militar y Law - Application of Miranda to Courts- Martial Admissions - U.S. v. Lincoln, 17 U.S.M.C. A. 330 (1967)
for the holding delineates a change in the Court's position regarding the
legal profession in this country. This change appears to be toward more
permissiveness, if such permissiveness is aimed at aiding a client in
attaining his constitutionally guaranteed freedoms, and its effect on the
profession will undoubtedly be marked.
Military Law-APPLICATION OF MIRANDA TO COURTS-MARTIAL
ADMISSIONS. Specialist Fourth Class Richard C. Lincoln, on trial for
premeditated murder before a general court-martial, testified that he did
not intend to kill the deceased. Without initially proving that the
accused had been warned of his rights, trial counsel sought to impeach his
testimony with statements Lincoln had made at a pretrial interrogation.
The statements were admitted as evidence and Lincoln was subsequently
convicted of voluntary manslaughter. The sentence was approved by the
convening authority and affirmed by the Army Board of Review.
In reversing the Board's decision, the Court of Military Appeals held
that without prior proof of compliance with the warnings against
selfincrimination set forth in Miranda v. Arizona' and United States v.
Tempia,2 allowing the introduction of an admission used to impeach the
accused's testimony was prejudicial error and a denial of due process of
Due process has always been guaranteed to the armed forces of the
United States,4 however, military due process had been defined as the fair
and uniform application of military law enacted by Congress. 5
Consequently, military courts were bound by Article 31 of the Uniform Code
(1966). In considering United Mine Workers, the Illinois Supreme Court felt that
upholding the Mine Workers program might lead unions to expand into the offering
of legal advice in areas unrelated to the members' jobs. The court also saw the
possibility of any group with a similarity of interests being allowed to form to hire an
attorney to deal with individual problems. Illinois State Bar Ass'n v. United Mine
Workers of America, Dist. 12, supra at 510. One writer, looking ahead to the
United Mine Workers holding, concluded that, taken together, Button, Trainmen, and
United Mine Workers may well establish "a strong impetus for reform." Zimroth,
,Group Legal Services and the Constitution, 76 YALE LJ. 966, 984 (1967).
1. 384 U.S. 436 (1966).
2. 16 U.S.C.M.A. 629, 137 C.M.R. 249 (1967).
S. United States v. Lincoln, 17 U.S.C.M.A. 330, 38 C.M.R. 128 (1967).
4. E.g., Reaves v. Ainsworth, 219 U.S. 296, 304 (1910).
5. French v. Weeks, 259 U.S. 326 (1922); United States v. Grisby, 335 F.2d 652 (4th
Cir. 1964); Innes v. Hiatt, 141 F.2d 664 (3d Cir. 1944).
of Military Justice to provide safeguards against self-incrimination,6 thus
the accused had to be warned inter alia that he had the right to remain
silent, that any statement he made could be used as evidence against
him,7 and that no statement could be admitted as evidence without
complying with this Article.' Although the UCMJ encompassed all
interrogations, 9 only when an interrogation produced a confession was the
government compelled to prove that the accused had been warned of
these rights before the confession could be admitted as evidence. 10 In
United States v. Seymour,- for example, the Court of Military Appeals
held that an admission did not require this prior affirmative proof of
compliance with the UCMJ unless there was an indication that the Code
had been violated.' 2 This standard was applied to statements made by a
suspect at an interrogation, and later used at the trial to impeach his
This distinction between an admission and a confession has persisted
6. 10 U.S.C. §831. (The Uniform Code of Military Justice, 10 U.S.C. S§ 801-940, is
hereinafter cited as UCMJ).
7. 10 U.S.C. S 831(b) "(H)e does not have to make any statement regarding the
offense of which he is accused or suspected, and that any statement made by him may
be used as evidence against him..."
8. 10 U.S.C. S 831(d) "No statement obtained from any person in violation of this
article, or through the use of coercion, unlawful influence or unlawful inducement may
be received in evidence against him in a trial by court martial."
11. 3 U.S.C.M.A. 401, 12 C.M.R. 157 (1953).
12. Exec. Order No. 10214 (1951). MANUAL FOR COURTS-MARTIAL (1951) 140 a:
"The admissibility of a confession of the accused must be established by an
affirmative showing that it was voluntary, unless the defense expressly
consents to the omission of such a showing, but an admission may be introduced
without such preliminary proof if there is no indication that it is
The apparent conflict between the MANUAL FOR COURTS-MARTAL, 1951 and 10
U.S.C. § 831 was reconciled by United States v. Seymour, 3 U.S.C.M.A. 401 at 402, IZ
C.M.R. 157 at 158 (1953):
The article makes no attempt to provide detailed rules governing the
admission of incriminatory statements. That function has been left to the
President under authority delegated by Article 36 (50 U.S.C. S 611)....
The rules promulgated by the President are of course, those contained in
the Manual for Courts-Martial. ...
Accord, United States v. Gann, 3 U.S.C.M.A. 12, 11 C.M.R. 12 (1953).
13. United States v. Davis, 10 U.S.C.M.A. 624, 627, 28 C.M.R. 190, 193 (1959).
up to the present time, 14 although more recent decisions have intimated
that admissions, received into evidence without prior proof of sufficient
warning, might be antithetical to due process.15
Recendy the tendency has been to define military due process as
emanating from the Constitution, rather than from Congress,'" in civilian'7
and in military courts.' 8 Accordingly, the Court of Military Appeals
announced in United States v. Jacoby'9 that the protections of the Bill
of Rights, except those which are expressly or impliedly inapplicable,
are available to servicemen.
Applying this principle, the court in Tempia held that proof that
accused had been warned of his right to counsel, was insufficient if the
interrogator had merely complied with the UCMJ, as in addition, the
government had to prove that the warnings set forth in Miranda had
been observed if a confession was to be admitted as evidence.2° Thus
the accused had to be warned that he had the right to counsel, either
retained or appointed, during the entire custodial interrogation.2 ' This
ruling has been applied in similar factual situations2 2 and has been
expanded to guarantee to servicemen other rights accorded civilians by
Here, United States v. Lincoln 4 extends this doctrine one step further
by obliterating the previous distinction between confessions and
admissions, thus marking the culmination of the trend begun by Tempia,
extending the protections of servicemen to include substantially all of the
protections accorded to civilians by Miranda2.5 Though the contention
has been made that such an extension to servicemen would undercut
the discipline necessary for the proper functioning of the armed forces,"6
it would appear that in the future, military personnel can be assured of
the full scope of protections afforded by the first ten amendments, with
the exception of those "privileges under the Bill of Rights which by
necessary implication are inapplicable to servicemen."27
DIFFICULTIEs As A VALID BusINEss PURPosE. During 1961 and prior years
taxpayers conducted, in various capacities, the business affairs of several
electronics merchandising corporations, known collectively as the Olson
Group. One of these corporations, Cleveland, owned all the stock in
States v. Bollons, 17 U.S.C.M.A. 157, 38 C.M.R. 55 (1967); and (2) that the government
has the affirmative burden to show conclusively that the accused has waived his right
to remain silent. United States v. McCauley, 17 U.S.C.M.A. 81, 37 C.M.R. 345 (1967);
United States v. Gustafson, 17 U.S.C.M.A. 150, 37 C.M.R. 4
24. 17 U.S.C.M.A. 330, 38 C.M.R. 128 (1967).
25. Thus the accused, either serviceman or civilian, has the right to remain silent.
Compare Miranda v. Arizona, 384 U.S. 436 (1966) 'with 10 U..C. S 831(b). He has
the right to counsel, either retained or appointed, from the beginning of the custodial
interrogation. Campare Miranda v. Arizona, 384 U.S. 436, 472 (1966), 'with United
States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967). Should the government
contend that the accused waived the above rights, it must prove this waiver conclusively,
before the waiver is admitted. For counsel; compare Miranda v. Arizona, 384 U.S. 436,
474 (1966), 'with United States v. Tempia, 16 U.S.C.MA. 629, 638, 640, 37 C.M.R.
249, 258, 260 (1967); and for the right to remain silent; compare Miranda v. Arizona,
384 U.S. 436, 474 (1966) with United States v. Bollons, 17 U.S.C.M.A. 253, 38 C.M.R.
51 (1967). Admissions have the same incriminating effect as confessions. Compare
Miranda v. Arizona, 384 U.S. 436, 476, 477 (1966), with United States v. Lincoln, 17
U.S.C.M.A. 330, 38 C.M.R. 128 (1967). An affirmative burden is placed upon the
government to prove conclusively that the above has transpired, or the statement risks
the fate of inadmissibility as evidence. Compare Miranda v. Arizona, 384 U.S. 436, 475
(1966) 'with United States v. Gustafson, 17 U.S.C.M.A. 150, 37 C.M.R. 4
United States v. Solomon, 17 U.S.C.M.A. 262, 38 C.M.R. 60 (1967).
26. Burns v. Wilson, 346 U.S. 137 (1953); United States v. Jacoby, 11 U.S.C.M.A.
428, 441, 29 C.M.R. 244, 257 (1960) (dissenting opinion). See generally, Note, 64
COLUM. L. REv. 127, supra note 17. But see Henderson, Courts Martial and the
Constitution: The original understanding,71 HARv. L. REv. 293 (1957).
27. See United States v. Tempia, 16 U.S.C.M.A. 629, 633, 37 C.M.R. 249, 253 (1967).
9. United States v. Wimberly , 16 U.S. C.M. A . 3 , 36 C.M.R . 159 ( 1966 ) ; United States v . Famighetti , 15 U.S. C.M. A . 152 , 35 C.M.R . 124 ( 1964 ) ; United States v . Peder son , 2 U.S.CM.A. 263 , 8 C.M.R. 63 ( 1953 ).
10. E.g., United States v . Josey , 3 U. S.C.M. A . 767 , 14 C.M.R . 185 ( 1954 ).
14. E.g., United States v . Lake , 17 U.S. C.M. A . 3 , 37 C.M.R . 267 ( 1967 ).
15. E.g., United States v . Macauley , 17 U.S. C.M. A . 81 , 86 , 37 C.M.R. 345 , 350 ( 1967 ).
16. See Warren , The Bill of Rights and the Military , 37 N.Y.U.L. REv. 181 ( 1962 ) ; Quinn, The United States Court of Military Appeals and Military Due Process, 35 ST . JoH-r's L. REv . 225 ( 1961 ); Note, Constitutional Rights of Servicemen Before Courts Martial, 64 COLtIM. L. REV. 127 ( 1964 ).
17. Burns v. Wilson, 346 U.S. 137 ( 1953 ); Shapiro v . United States , 69 F. Supp . 205 ( Ct. Cl . 1947 ).
18. Compare United States v. Culp , 14 U.S. C.M. A . 199 , 33 C.M.R . 411 ( 1963 ), Ilith United States v . Clay , 1 U. S.C.M. A . 74 , 1 C.M.R. 74 ( 1951 ) (earlier view).
19. 11 U. S.C.M. A . 428 , 29 C.M.R . 244 ( 1960 ). Accord, United States v. Culp , 14 U.S. C.M. A . 199 , 133 C.M.R . 411 ( 1963 ). While this case held that the Sixth Amendment did not entitle the accused to legally qualified counsel in special courts martial, the court unanimously agreed that the Bill of Rights applied to servicemen . See also, United States v. Tempia , 16 U.S. C.M. A . 629 , 37 C.M.R . 249 ( 1967 ).
20. 16 U. S.C.M. A . 629 , 636 , 37 C.M.R. 249 , 246 ( 1967 ).
21. 16 U. S.C.M. A . 629 , 37 C.M.R . 249 ( 1967 ). See generally, Note, PartialProtection from Self Incrhiination , 9 WAIM . & MARY L. REv . 844 ( 1968 ).
22. United States v. Groover , 17 U.S. C.M. A . 295 ; 38 C.M.R . 93 ( 1967 ) ; United States v . Wood , 17 US.C.M.A. 257 , 38 C.M.R . 55 ( 1967 ) ; United States v . Pearson , 17 U.S. C.M. A . 204 , 38 C.M.R . 33 ( 1967 ) (per curiam); United States v . McCauley , 17 U.S. C.M. A . 81 , 37 C.M.R . 345 ( 1967 ) ; United States v . Burns , 17 U.S.C.MA . 39 , 37 C.M.R . 303 ( 1967 )
23. The Court of Military Appeals, in applying United States v. Tempia, has held: (1) that the accused may invoke his silence at any time during questioning . United