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Chapter 4 Constitutional Considerations - 14134_79
Legalman 3 & 2 - Navy Lawyer / Jag training guide manuals
Procedures for Administering a Warning Under Article 31, UCMJ
compels the person being questioned to give responses that tend to establish his or her guilt of a crime. Notice that the article deals with persons, not just suspects. The privilege  against  self-incrimination  applies  to  both accused  persons  and  to  witnesses. The  type  of compulsion  contemplated  could  involve  an  in-court situation  where  either  a  witness  or  the  accused  is required  to  answer  questions. In court, the accused has an absolute right not to take the stand and testify. If the accused chooses to take the stand to testify on any or all of the charges against him or her, the accused may be compelled to answer any questions on the charge or charges about which the accused  did  testify,  even  though  the  answer  would incriminate him or her. The accused may, however, take the stand and limit his or her testimony to a collateral issue. He or she would  then  retain  his  or  her  privilege  against self-incrimination  as  to  all  other  issues. Example: Prosecution offers a statement of the accused into evidence. The accused takes the stand to  testify  about  the  voluntariness  of  the statement.  Trial  counsel,  on  cross-exam- ination,  asks  the  accused  “But  isn’t  your statement true?” This question is improper, not only because the truth  of  the  offered  statement  is  immaterial  to  its voluntariness, but also because the accused may not be  compelled  to  answer  the  question.  The  accused may assert his or her right against self-incrimination. Similarly,  the  accused  who  is  defending  against  more than one specification may elect to take the stand and limit his or her testimony to less than all the offenses charged. If he or she does this, the accused retains his or her privilege against self-incrimination as to the offenses about which he or she does not testify. On the other hand, a witness may be compelled to come to court, to take the stand, and to testify. However, the witness may not be compelled to incriminate himself or herself. The witness’ privilege against self-incrimination is personal. He or she must assert it personally. When he or she does, the ruling officer, usually the military judge, will decide if the answer will in fact incriminate the witness. If the ruling officer decides that it will not incriminate the witness, the ruling officer will direct the witness to answer. If the ruling officer is incorrect in his or her determination, the answer cannot later be used in a trial against the witness.   This is because the answer will have been compelled in violation of Article 31(a). Article 31(b)—“No person subject to this chapter may  interrogate  or  request  any  statement  from  an accused or a person suspected of an offense without first informing  him  of  the  nature  of  the  accusation  and advising  him  that  he  does  not  have  to  make  any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used against him in a trial by court-martial.” This is the subsection of Article 31 that will be most significant to you. The previous examples indicate that it  is  the  person  conducting  the  hearings  who  must concern himself or herself with Articles 31(a) and 31(c). On the other hand, as an LN, you will be intimately involved  in  pretrial  and  investigative  interviews  with suspects, and you must understand and comply with Article  31(b)  to  guarantee  the  admissibility  of  any statement elicited. Article 31(c)—“No person subject to this chapter may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade  him.” This subsection is an enactment of a rule of evidence that  prevents  the  admission  of  immaterial  or  irrelevant evidence. It is important to notice that the witness may be compelled to answer, no matter how degrading the answer may be, if the court determines the evidence to be relevant. Article 31(d)—“No statement obtained from any person in violation of this article or through the use of coercion,  unlawful  influence,  or  unlawful  inducement may be received in evidence against him in a trial by court-martial.” This subsection is the teeth of Article 31. In general terms,  it  provides  that  evidence  or  statements  obtained without affirmative compliance with Article 31 by the interrogator are inadmissible in a court-martial. A few examples are necessary to define the scope of unlawful influence  and  inducement. . Interrogator tells the accused that if he or she does not make a statement the interrogator will see that the accused’s wife is arrested. This is a violation of Article 31. . Interrogator tells the accused that if he or she makes a statement the interrogator will see to it that the case will be handled in juvenile court and will not affect  the  accused’s  service.  This  is  a  violation  of Article  31. 4-2

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