Military Justice 101 - Part V
Self-Incrimination Protections
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Consent to search. Article 31(b) warnings are not needed when asking for consent to search. While use of warnings are permissible, most criminal investigators will give "consent to search" advice, rather than Article 31(b) warnings.
The right to counsel. Counsel warnings. Apart from a suspect's or accused's Article 31(b) rights, a servicemember who is in "custody" must be advised of additional rights. These rights, which are sometimes referred to as Miranda / Tempia warnings, are codified and somewhat extended by Mil.R.Evid. 305. Counsel warnings should be stated as follows:
a. "You have the right to consult with a lawyer prior to any questioning. This lawyer may be a civilian lawyer retained by you at your own expense, a military lawyer appointed to act as your counsel without cost to you, or both."
b. "You have the right to have such retained civilian lawyer or appointed military lawyer or both present during this or any other interview."
In addition to custodial situations, The Manual for Courts Martial (Mil.R.Evid. 305(d)(1)(B)) requires that counsel warnings be given when a suspect is interrogated after preferral of charges or the imposition of pretrial restraint if the interrogation concerns matters that were the subject of the preferral of charges or that led to the pretrial restraint.
If the suspect or accused requests counsel, all interrogation and questioning must immediately cease. Questioning may not be renewed unless the accused himself initiates further conversation or counsel has been made available to the accused in the interim between his invocation of his rights and subsequent questioning.
"Custody." While custody might imply the "jail house" or "brig," the courts have interpreted this term in a far broader sense. Any deprivation of one's freedom of action in any significant way constitutes custody for the purpose of the counsel requirement. Suppose Airman Fuller is taken before his commanding officer, Major Sparks, for questioning. Fuller is not under apprehension or arrest; furthermore, no charges have been preferred against him. Sparks proceeds to question Fuller concerning a broken window in the former's office. Sparks has been informed by Staff Sergeant Jenks that he saw Fuller toss a rock through the window. Here, Fuller is suspected of damaging military property of the United States. In this situation, with Fuller standing before his commanding officer, it should be obvious that Fuller has been denied his freedom of action to a significant degree. Fuller is not free simply to leave his commanding officer's office, or to refuse to appear for questioning. Thus, Major Sparks would be required to advise Fuller of his counsel rights as well as his Article 31(b) rights. If Sparks does not, Fuller's admission that he broke the window would be inadmissible in any forthcoming court-martial. Likewise, where a suspect is summoned to a military investigator's office for an interview with an investigative agent, this will constitute custody necessitating Article 31 and counsel warnings.
Suppose that a servicemember is being held by civilian authorities on civilian charges (e.g., speeding) and a member of the military visits him to question him concerning on-base drug use. Even though the servicemember was not being questioned about the offense for which he was incarcerated, he will be considered to be in custody. Thus, advice as to counsel is required.
Spontaneous confession. One further circumstance is worthy of discussion. Suppose a servicemember voluntarily walks into the first sergeant's officer's office and, without any type of interrogation or prompting by the first sergeant, fully confesses to a crime. The confession would be admissible as a "spontaneous confession," even though the first sergeant never advised the servicemember of any rights. As long as the first sergeant did not ask any questions, no warnings were required. There is also no legal requirement for one to interrupt a spontaneous confession and advise the person of rights under Article 31 even if the spontaneous confessor continues to confess for a long period of time. If the listener wants to question the spontaneous confessor about the offense, however, proper Article 31 and counsel warnings must be given for any subsequent statement to be admissible in court.
Notice to counsel. Under a 1995 change to the MCM, a suspect may waive his right to have counsel notified and present at questioning.
Right to terminate the interrogation. Although not required by Article 31, case law, or the Military Rules of Evidence, some courts have recommended that a suspect be advised that he or she has a right to terminate the interrogation at any time for any reason. Failure to give such advice probably will not render the suspect's confession inadmissible. Still, advising a suspect that he or she has a right to terminate the interview should make for a strong government argument that any confession that the suspect gives is voluntary.
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Information derived from Handbook of Military Justice & Civil Law, Courtesy of the United States Navy
