In an interesting development in the Army case of U.S. v. Lewis, the Court of Appeals for the Armed Forces (CAAF) has decided to affirm the Army Court of Criminal Appeal’s (CCA) partial reversal of a lower court’s suppression ruling.  Specifically, one out of three suppressed statements from the defendant has lost the suppression ruling’s protection and can be brought back to court as admissible evidence during court-martial. In its opinion, the CAAF noted it was tasked with determining if the military judge misused his power of discretion to suppress evidence as under Military Rule of Evidence 304, and that it and the Army had determined that he had.

The decision is noteworthy in that the suppression reversal was carried out through an interlocutory appeal, or an appeal that occurs while other parts of the case are still in development. Typically, the CAAF does not get called upon to make such a major decision until well after a military criminal defense case concludes entirely in lower courts or court-martial.


In U.S. v. Lewis, Specialist Lewis is facing charges of sexual assault of a child and will be judged through general court-martial. Before the charges were ever made official, though, he had been interrogated multiple times. During the first interrogation, it was admitted by one of the Army criminal investigators that Lewis was not told the mandatory rights advisory out of fear that he would use Article 31(b) of the Uniform Code of Military Justice (UCMJ) to protect himself from inadvertently making a self-incriminating statement. In a second and third interrogation, Lewis waived his rights after being told of them and continued to provide detailed admissions of sexually abusive behavior to investigators.

When the case was brought to trial, Lewis attempted to have all of his admissions during the three interrogations suppressed. He was partially successful in suppressing statements from the first and second interrogations, but the Army CCA held that statements given in the third interrogation were admissible. At that point, Lewis appealed up to the CAAF as his case continued for a final decision.

The CAAF found that Lewis should have had a reasonable understanding of his rights and the situation at hand by the time the third interrogation was conducted. Suppression for the first interrogation was accepted due to the lack of mandatory rights being read to him, and the second interrogation was cloudy, making its admissions less valuable to the prosecution. But the CAAF found that the military judge applied the wrong law when suppressing the admissions from the third interrogation, which also happened to be the most inflammatory for his defense case.


Only one Judge of the CAAF offered a different take on the situation in his opinion, but did not expressly dissent from the CAAF’s affirmation. Judge Ryan expressed concern over the CAAF’s decision to use an interlocutory appeal, claiming the practice of intervening while a case is still in process “runs contrary to the well-established principles guiding criminal appeals.” However, her opinion is not entirely surprising to members in military criminal justice circles, given that she wrote years ago that the CAAF should not have any power to review or make an interlocutory appeal for any reason.

The takeaway from this development in U.S. v. Lewis, apart from watching what is said to a military investigator without an attorney present, is that the CAAF’s discretion to make high level judgement calls is omnipresent. Whether a case has concluded or still develops, the CAAF can be called upon to affirm or deny the rulings of lower courts. If this will ever work to the benefit of a defendant is yet to be seen, though.


Attorney Joseph L. Jordan is a military criminal defense lawyer with the experience and talents needed to handle any defense case for military service members. From Article 120 rape charges to aggravated sexual assault, he is ready to challenge any charges on your behalf. Attorney Jordan has even won numerous child sexual assault cases in trial and during the investigative stage. Given his reputation and background, there is no development in a case that can catch him off-guard, including if certain rulings get appealed up to a CCA or the CAAF. No matter what happens, he will be there to protect your rights as a proud protector of our great country.

Call (866) 624-7503 or contact our firm online to begin your defense. Attorney Jordan represents military service members on bases across the globe and in all branches of the Armed Forces.