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Military Justice 101 - Part V

Self-Incrimination Protections

(Page 2)

Application to other interrogations. The agents of the Naval Criminal Investigative Service, The Air Force Office of Special Investigations, the Army Criminal Investigation Division, and the Marine Corps' Criminal Investigation Division must comply with Article 31(b) in all military interrogations. This rule applies with equal force to civilians acting as base or station police when acting as agents of the military. Likewise, other civilian investigators, such as Federal and state investigators, must warn an accused or suspect of his Article 31(b) rights when acting as agents of the military. Additionally, Article 8, UCMJ, contains the following provision: "Any civil officer having authority to apprehend offenders under the laws of the United States or of a State, Territory, Commonwealth, or possession, or the District of Columbia may summarily apprehend a deserter from the armed forces and deliver him into the custody of those forces." With regard to FBI apprehension of deserters, the Court of Military Appeals has specifically held that no Article 31(b) warning was required prior to such apprehension. United States v. Temperley, 22 C.M.A. 383, 47 C.M.R. 235 (1973).

A close look at Temperley is necessary to see precisely what is authorized. All that the court allowed to be done was to ask the suspect questions about his identity without advising him under Article 31. The FBI agents here approached Temperley and asked him if his name was "Mr. John Charles Rose," and he replied that it was. It was only after this conversation, and the determination that "Mr. Rose" was actually Temperley, that he was apprehended and taken into custody as a deserter wanted by the armed forces. This initial conversation, including the use of the alias by the accused, was held to be properly admissible evidence, relevant to the charges of desertion. The court, however, also held that, once agents have taken the individual into custody or otherwise deprived him of his freedom of action in any significant way, appropriate warnings must be given including warnings as to counsel rights if there is to be further questioning.

Civilian law enforcement officers are not required to give an Article 31(b) warning prior to questioning a military person suspected of a military offense, so long as they are acting independently of military authorities. In such cases, the civilians are not acting in furtherance of a military investigation unless the civilian investigation has merged with a military investigation. Situations arise where a servicemember may be investigated by both Federal and military authorities jointly. However, the fact that parallel investigations are being conducted through cooperation by military and Federal or state authorities does not make the civilians agents of the military. Thus, no Article 31(b) warning will usually be required of civilian authorities unless they act directly for the military or the two investigations are merged into one.

Does Article 31 apply to interrogations of military suspects conducted by foreign officials? Case law and the Military Rules of Evidence indicate that, unless foreign authorities are acting as agents of the military or the interrogation is instigated or participated in by military personnel or their agents, no Article 31(b) warning is required. Mere presence of U.S. military personnel at a foreign interrogation does not rise to the level of "joint participation." Still, any statement given by a suspect to foreign authorities must be voluntary if the statement is to be used at a subsequent court-martial. Thus, if he foreign authorities use physical or psychological coercion or inducements, the suspect's statements may be held to be inadmissible.

Who must be warned? Article 31(b) requires that an accused or suspect be advised of his rights prior to questioning or interrogation. A person is an accused if charges have been preferred against him or her. On the other hand, to determine when a servicemember is a suspect is more difficult. The test applied in this situation is whether suspicion has crystallized to such an extent that a general accusation of some recognizable crime can be made against this individual. This test is an objective reasonable person standard. The analysis utilized is, "Would a reasonable individual have suspected the individual of committing the crime?" Courts will review the facts available to the interrogator to determine whether the interrogator should have suspected the servicemember, not whether he in fact did. Rather than speculate in a given situation, it is far preferable to warn all potential suspects before attempting any questioning.

When are warnings required? As soon as an interrogator seeks to question or interrogate a servicemember suspected of an offense, the member must be warned in accordance with Article 31(b). An interrogation takes place when questioning, conversation, acts, or lack thereof, are intended to, or reasonably likely to, elicit an incriminating response.

What warnings are required? (Article 31(b) UCMJ)

Fair notice as to the nature of the offense. The question frequently arises, "Must I warn the suspect of the specific article of the UCMJ allegedly violated?" There is no need to advise a suspect of the particular article violated. The warning must, however, give fair notice to the suspect of the offense or area of inquiry so that he can intelligently choose whether to discuss this matter. For example, Agent Smith is not sure of exactly what offense Seaman Jones has committed, but he knows that Seaman Jones shot and killed Private Finch. In this situation, rather than advise Seaman Jones of a specific article of the UCMJ, it would be appropriate to advise Seaman Jones that he was suspected of shooting and killing Private Finch.

Warning of the right to remain silent. The right to remain silent is not a limited right in the sense that an accused or suspect may be interrogated or questioned concerning matters that are not self-incriminating. Rather, the right to remain silent is an absolute right to silence -- a right to say nothing at all. Concerning this point, the Court of Military Appeals has said: "We are not disposed to adopt the view . . . that Article 31(b) should be interpreted to require . . . that the suspect can refuse to answer only those questions which are incriminating." United States v. Williams, 2 C.M.A. 430, 9 C.M.R. 60, 62-63 (1953).

Warning regarding the consequences of speaking. The exact language of Article 31(b) requires that the warning advise an accused or suspect that any statement made may be used as evidence against him in a trial by court-martial. In one older case, the interrogator merely advised the accused that anything that the accused said could be used against him. The words "in a trial by court-martial" were omitted. The Court of Military Appeals held that this was not error, reasoning that the advice was actually broader in scope than the provisions of Article 31. While this might be entirely true, there is no excuse for lack of precision in language when advising an accused or suspect of his rights. Many convictions have been reversed merely because the interrogator attempted to advise an accused or suspect "off the top of his head."

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Information derived from Handbook of Military Justice & Civil Law, Courtesy of the United States Navy

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