…by disobeying a direct order from a superior by failing to take his flight physical?
The link provided doesn’t seem to address the issue. The only time the word crime is used is in paragraph “g”, which says disciplinary punishment is not a bar to trial for a serious crime or offense.
I would be interested to know if the Fifth Amendment protection from self-incrimination would apply here. If such a physical would incriminate Lt. Bush, would he have legal grounds to refuse such a physical?
The 5th amendment is about testifying in court:
Maybe I don’t understand your question, but I don’t see how that could possibly apply in this situation.
John Mace:
Then why do the police need to inform suspects of it when they are arrested? Is there an implicit assumption that anything the police hear will make it into court?
Well, a state general court-martial may impose only the following punishments: (1) a fine of not more than $200 or confinement for not more than 200 days; (2) forfeiture of pay and allowances; (3) reprimand; (4) dismissal or dishonorable discharge; (5) reduction of a noncommissioned officer to the ranks; or (6) any combination of those punishments.
Disobeying a direct order is covered by § 432.135, which provides that a person who “wilfully disobeys a lawful command of his commissioned officer” can be punished “as a court-martial directs.”
So if you had proved beyond a reasonable doubt to the court-martial that Lt. Bush has disobeyed a direct order, then, presumably, he’d have been subject to whatever penalty the court-martial may have directed.
It’s unclear to me whether this is fairly considered a “crime,” in the sense that it’s a violation of a military justice regulation that has no direct civilian analog. If a person convicted under these circumstances by a state court-martial was later asked, “Have you ever been convicted of a crime?” I believe they would be justified in answering ‘No.’
No.
The privilege against self-incrimination is limited to testimonial evidence. A driver may be compelled to provide blood or beath samples, even though the results may incriminate them.
- Rick
It’s not implicit at all; it’s quite direct, as per the second line of the formal Miranda recitation:
You have the right to remain silent and refuse to answer questions.
Anything you do say may be used against you in a court of law.
You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
If you cannot afford an attorney, one will be appointed for you before any questioning if you wish.
If you decide to answer questions now without an attorney present you will still have the right to stop answering at any time until you talk to an attorney.
Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?
The British equivalent is along the lines of “Anything you say may be taken down and used as evidence”, which presumably means your statements accusing others could be used against them in their court proceedings.
The right to remain silent is implied by the fifth amendment but “The Right of Silence” during investigations predates the U.S. Constitution by a considerable margin, at least as far back as 1641 when John Lilburn petitioned Parliament to abolish the Star Chamber, which could and did torture suspects for confessions to crimes beyond those formally charged.
Bryan Ekers:
I mean implicit in the constitutional amendment. After all, if the actual amendment only applies to statements from the witness stand, the fact that cops can be witnesses to what the suspect said shouldn’t make that amendment apply to what the suspect himself says to the cops.
Unless there’s something in the constitution (or an implicit assumption in that amendment) which makes statements to police the equivalent of statements from the witness stand.
The Fifth Amendment applies to testimonial evidence - the spoken word. It does protect you against having to incriminate yourself by speech, but it is not limited to a trial context. It applies to any instance in which you might be required to convey verbal information that would incriminate you.
Exempt from the ambit of the Fifth are things like “routine booking questions” – you do not have the right to refuse to identify yourself, for example. And if you are arrested for drunken driving and are slurring your words, this fact may be used against you. But you are not required to answer questions posed to you by the police apart from routine identity.
You can be required, as I said, to give up physical specimens like breath and blood. You can be required to produce documents in your possession, even if they incriminate you.
Finally, you can be compelled to testify, even if your testimony would otherwise be incriminating, under a grant of “use immunity.” This guarantee that the government will not use your testimony against you means that your testimony is, by definition, no longer incriminating, and it pierces the veil of Fifth Amendment protection.
- Rick
I can’t find one, but the right of silence is inherited from English common law, as is much of the body of law practiced in the U.S. (except for Louisiana). Without such a right, police could in theory torture suspects for information. Even if the statements themselves weren’t admissable, instances like “We found the murder weapon buried under the suspect’s outhouse” while omitting “The suspect told us where to look after a few hours with the electrodes” could occur.
From an evidentiary standpoint, a statement to police is hearsay - an out-of-court statement, offered into evidence to prove the truth of the matter asserted in the statement. As a rule, hearsay is inadmissible, but one exception to the general rule is when the statement is an admission - a statement that exposes the the speaker to penal or pecuniary liability.
Even if torture were permitted, admissions that were the fruits of torture would not have the same indicia of reliability that a voluntary admission would, and would likely fail to be admitted for that reason.
- Rick