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Appellate Court reverses false official statement conviction due to violation of appellant’s Article 31(b) rights.

First Lieutenant (1LT) Evans was convicted at a court-martial of an Article 121 larceny violation as well as two Article 107 false official statement charges.  The false official statement convictions involved two statements 1LT Evans made during an investigation into whether or not he wore an unauthorized combat patch. One statement was the submission of a dental x-ray purportedly taken at a clinic in Afghanistan.  Another statement was a memorandum in which 1LT 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 was obtained in violation of Article 31(b) because 1LT Evans was questioned by investigators without his attorney present.  Article 31 rights are unique to the military.  These rights are similar to Miranda rights and apply if someone subject to the UCMJ (i.e., uniformed supervisor or the Army investigator in this case) suspects a servicemember of a crime.  Under Article 31, in this case the investigator was required to inform 1LT Evans of his Article 31 rights prior to questioning him.  He did not do so prior to obtaining the memorandum that was later used against 1LT Evans in his court-martial to support both Article 107 charges.  The military judge allowed the memorandum in as evidence despite the violation of Article 31.  The Army Court of Criminal Appeals (ACCA) found that the military judge erred and reversed 1LT Evans’ Article 107 charge involving the memorandum.  The ACCA did not reverse the conviction regarding the x-ray Article 107 charge even though the memorandum was used as evidence to support that charge.  To make this determination, ACCA applied a four part test created in United States v. Kerr in 1999.   The Court of Appeals for the Armed Forces (CAAF) is now going to review ACCA’s decision to determine if ACCA used the right legal test to weigh whether or not the military judge’s error was prejudicial to 1LT Evans in the x-ray charge.  In this case, CAAF is going to review whether ACCA should have applied a more stringent “harmless beyond a reasonable doubt” test that was created in United States v. Brisbane in 2006.  This review by CAAF could play out favorably for the appellant and will determine which test should be applied to Article 31 violations in the future.  If you or your loved one is facing a court-martial or an appeal, you need an advocate by your side that is fully apprised of all the latest military court decisions.  I am constantly reviewing the most recent decisions so that I know exactly how to be successful for my clients.  If you want experience and current knowledge by your side then call me.  To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

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