Military Justice 101 - Part V
Self-Incrimination Protections
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Cleansing warnings. When an interrogator obtains a confession or admission without proper warnings, subsequent compliance with Article 31 will not automatically make later statements admissible. This is best illustrated with the following example: Assume the accused or suspect initially makes a confession or admission without proper warnings. This is called an "involuntary statement" and, due to the deficient warnings, the statement would be inadmissible at a later court-martial. Next, assume the accused or suspect is subsequently properly advised and then makes a second statement identical (or otherwise) to the first "involuntary" statement. Before the second statement can be admitted, the trial counsel must make a clear showing to the court that the second statement was both voluntary and independent of the first "involuntary" statement. There must be some indication that the second statement was not made only because the person felt the government already knew about the first confession and, therefore, he had "nothing to lose" by confessing again.
The Court of Military Appeals has sanctioned a procedure to be followed when a statement has been improperly obtained from an accused or suspect. In this situation, rewarn the accused giving all warnings mandated. In addition, include a "cleansing warning" to this effect: "You are advised that the statement you made on _____________ cannot and will not be used against you in a subsequent trial by court-martial." Although not a per se requirement for admission, this factor (i.e., a "cleansing warning") will assist the trial counsel in meeting his burden of a "clear showing" that the second statement was not tainted by the first.
Another problem in this area concerns the suspect who has committed several crimes. The interrogator may know of only one of these crimes, and properly advises the suspect with regard to the known offense. During the course of the interrogation, the suspect relates the circumstances surrounding desertion, the offense about which the interrogator has warned the accused. During questioning, however, the suspect tells the interrogator that, while in a desertion status, he or she stole a military vehicle. As soon as the interrogator becomes aware of the additional offense, the interrogator must advise the suspect of his or her rights with regard to the theft of the military vehicle before interrogating the suspect concerning this additional crime.
If the interrogator does not follow this procedure, concerning the theft of the military vehicle that are given in response to interrogation regarding the theft probably will be excluded, even though the statements regarding the desertion may be admissible.
"Statement" defined. Up to this point, you have probably assumed that Article 31 concerns "statements" of a suspect or accused. This is correct, but the term "statement" means more than just the written or spoken word.
First, a statement can be oral or written. In court, if the statement were oral, the interrogator can relate the substance of the statement from recollection or notes. If written, the statement of the accused or suspect may be introduced in evidence by the prosecution. Many individuals, after being taken to an investigator's office and after waiving their right to remain silent and their right to counsel, have given a full confession. When asked if they made a "statement" to the investigator, they will often respond, "No, I did not make a statement; I told the agent what I did, but I refused to sign anything." Provided the accused was fully advised of his rights, understood and voluntarily waived those rights, an oral confession or admission is as valid for a court's consideration as a writing. Naturally, where the confession or admission is in writing and signed by the accused, the accused will have great difficulty denying the statement or attributing it to a fabrication by the interrogator. Thus, investigators normally reduce such statements to writing, whether or not the accused or suspect agrees to sign it.
In addition to oral statements, some actions of an accused or suspect may be considered the equivalent of a statement and are thus protected by Article 31. During a search, for example, a suspect may be asked to identify an item of clothing in which contraband has been located. Because the servicemember is a suspect, these acts on his part may amount to admissions. In most cases, however, a request to an individual to identify himself is not an "interrogation," and production of the identification is not a "statement" within the meaning of Article 31(b). Consequently, no warnings are required. Superiors and those in positions of authority may lawfully demand a servicemember to produce identification at any time without first warning the servicemember under Article 31(b). Merely identifying one's self upon request is generally considered to be a neutral act. An exception to this general rule arises when the servicemember is suspected of carrying false identification. In such cases, the act of producing identification is an act that directly relates to the offense of which the servicemember is suspected. The act, therefore, is "testimonial" and not neutral in nature.
In United States v. Nowling, 9 C.M.A. 100, 25 C.M.R. 363 (1958), the accused was suspected by an air policeman of possessing a false pass. The air policeman asked the accused to produce the pass; the accused did so and was subsequently tried for possession of the false pass. The Court of Military Appeals observed:
We conclude, therefore, that the accused's conduct in producing the pass at the request of the air policeman was the equivalent of language which had relevance to the accused's guilt because of its content . . . Under such circumstances the request to produce amounts to an interrogation and a reply either oral or by physical act constitutes a "statement" within the purview of Article 31.
Thus, when a servicemember is suspected of an offense involving false identification, Article 31 warnings are required prior to asking the servicemember to produce the identification. Failure to give warnings will result in the exclusion of the evidence obtained when the suspect produces the identification.
Essentially the same situation occurred in United States v. Corson, 18 C.M.A. 34, 39 C.M.R. 34 (1968), except that there the accused was suspected of possessing marijuana. Based upon a rumor that the accused was in possession of certain drugs, he was told: "I think you know what I want; give it to me." The accused produced the marijuana. His conviction was overturned on the basis of the rationale in Nowling. The theory behind all of these "testimonial act" cases is that a suspect may not be requested to produce evidence against himself (self-incrimination) without being warned that he is not required to do so.
Body fluids. From 1957 to October 1980, the same rationale which has been applied to "testimonial acts" was also applied to the taking of body fluids. Thus, prior to October 1980, the law had been that the taking of blood, urine, and other body fluids required an Article 31(b) warning to the effect that the individual was suspected of a specific crime; that he did not have to produce the body fluid requested; and that if he did produce the fluid it could be subjected to tests, the results of which could be used against him in a trial by court-martial. United States v. Ruiz, 23 C.M.A. 181, 48 C.M.R. 797 (1974). In United States v. Armstrong, 9 M.J. 374 (C.M.A. 1980), however, the Court of Military Appeals ruled that the taking of blood speci-mens is not protected by Article 31 and, hence, Article 31(b) warnings are not required before taking such specimens. In Murray v. Haldeman, 16 M.J. 74 (C.M.A. 1983), the Court of Military Appeals extended the Armstrong rationale to urine specimens. The Military Rules of Evidence treat the taking of all body fluids as nontestimonial and neutral acts and thus not protected by Article 31. Although the extraction of body fluids no longer falls within the purview of Article 31, the laws concerning search and seizure and inspection remain applicable, and compliance with Mil.R.Evid. 312 is a prerequisite for the admissibility in court of involuntarily obtained body fluid samples. Furthermore, even though urinalysis results are not subject to the requirements of Article 31(b), they sometimes may not be admissible in courts-martial because of administrative policy restraints imposed by departmental or service regulations.
Other nontestimonial acts. To compel a suspect to display scars or injuries, try on clothing or shoes, place feet in footprints, or submit to fingerprinting does not require an Article 31(b) warning. A suspect does not have the option of refusing to perform these acts. The reason for this rests on the fact that these acts do not, in or of themselves, constitute an admission, even though they may be used to link a suspect with a crime. The same rule applies to voice and handwriting exemplars and participation in lineups.
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Information derived from Handbook of Military Justice & Civil Law, Courtesy of the United States Navy
