Note – Thank You, Servicemember! But Your Process Is in Another Forum: The Misuse of Civil Jurisprudence to Inform UCMJ Rights
Volume 64, Issue 4, 1381-1402
Congress codified many of the disciplinary procedural rights for servicemembers in the Uniform Code of Military Justice (“UCMJ”). Several of these explicit, statutory protections were later developed as judicial doctrines for civilians, such as Miranda’s right against self-incrimination and Kastigar’s right to testimonial immunity. In response the military’s highest court, the U.S. Court of Appeals for the Armed Forces, adopted the U.S. Supreme Court’s jurisprudence to inform a servicemember’s statutory rights under the UCMJ. But in doing so, military justice did not recognize that civilian rights are typically only invoked in trials while military discipline is affected through a gamut of proceedings separate and distinct from a court-martial. This Note reviews the incorporation of Miranda and Kastigar to reveal how appropriating civilian common law, which was intended for the courtroom, may inadvertently decrease a servicemember’s procedural protection in other fora.