(concurring):
Judge Sullivan states that my concurrence in United States v. Solis, 46 MJ 31, 36 (1997), “possibly raises some doubt ... about extinction of the ‘exculpatory-no’ doctrine.” 47 MJ at 151. This does not accurately characterize my opinion there, where I expressly stated: “I agree that the ‘exculpatory no’ doctrine does not provide a defense to a prosecution for making a false official statement under Article 107, Uniform Code of Military Justice, 10 USC § 907.”
Judge Sullivan also suggests that Solis was intended to bring about “extinction” of the applicable provisions of the Manual for Courts-Martial, United States (1995 ed.). This does not accurately reflect the principal opinion in Solis, which expressly left open the effect of the Manual’s provisions. 46 MJ at 35-36. As I noted in my concurring opinion:
I reserve judgment, however, as to whether a military member who initially denies involvement in a criminal enterprise to a military police investigator may be prosecuted under this article in light of paragraph 31c(6)(a), Part IV, Manual for Courts-Martial, United States (1995 ed.), which provides, “A statement made by an accused or suspect during an interrogation is not an official statement within the meaning of the article if that person did not have an independent duty or obligation to speak.” This question was not litigated here.
46 MJ at 36.
In that regard, if there is any view that would result in extinction of the Manual’s provisions, it is the position taken by Judge Sullivan, since he would affirm the conviction in this case based upon the mere articulation of Article 31, UCMJ, 10 USC § 831, warnings in a situation where there is no evidence that the individual being interrogated had an independent duty to speak.