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CHAPTER 4
CONSTITUTIONAL CONSIDERATIONS
The time has now come for a more searching
examination of the Uniform Code of Military Justice
(UCMJ) and of your duties as an LN in the area of
military justice.
Future lessons will be devoted to
nonjudicial punishment (NJP), to courts-martial, and to
the pretrial and posttrial activity associated with
courts-martial.
Before we address these subjects,
however, you must develop an understanding of several
important constitutional principles—principles that, if
not exactly followed, may invalidate the results of
disciplinary proceedings.
The first of these constitutional principles that we
will look at concerns the accused’s rights under the Fifth
Amendment and how Article 31 of the UCMJ is used to
interpret these rights as well as the procedures used to
inform the accused of these rights.
ARTICLE 31, UCMJ, AND THE FIFTH
AMENDMENT
Article 31 of the UCMJ is a statutory enactment of
judicial interpretations of the Fifth Amendment
protection against compulsory self-incrimination. Like
all statutes, Article 31 is of a lesser importance than the
constitutional provision. It is, however, broader than the
constitutional guarantee and will, therefore, be used as
a basis of discussing the rights of persons subjected to
interrogation.
The concerns of Congress in enacting Article 31
were the interplay of interrogations with the military
relationship.
Specifically, because of the effect of
superior rank or official position, the mere asking of a
question under certain circumstances could be
construed as the equivalent of a command. So, to make
sure the privilege against self-incrimination was not
undermined, Article 31 requires that a suspect be
advised of specific rights before questioning can
proceed.
PREINTERROGATION WARNINGS
Before an individual can be questioned on an
alleged crime that the individual is suspected of
committing, that person’s rights as afforded by the U.S.
Constitution must be explained. This explanation of the
individual’s rights is called a preinterrogation warning.
To help you understand this warning, you will examine
what is required by the Fifth Amendment, how Article
31 of the UCMJ incorporates the Fifth Amendment, and
what procedures must be followed to properly
administer a warning under Article 31, UCMJ.
Fifth Amendment Rights
The Fifth Amendment to the U.S. Constitution
provides, among other things, that no person “shall be
compelled in any criminal case to be a witness against
himself.”
The Sixth Amendment requires that the
accused in a criminal case “be informed of the nature
. . . of the accusation” and that he or she have the
“assistance of counsel for his defense.” In passing the
UCMJ, Congress enacted the spirit of the Fifth
Amendment in Article 31. Much later, the Court of
Military Appeals made applicable to the military a
decision of the Supreme Court of the United States.
That decision declared if an accused person is
interrogated with a view toward using his or her
statement in evidence against him or her, the accused
has not only the right to have the assistance of counsel,
but must be advised of this right before any
interrogation.
Since you will be dealing with persons suspected of
offenses, you will be primarily interested with real world
ramifications of these rights. When and by whom must
a suspect be warned? What is a valid warning? What
are the consequences of a failure to warn?
Article 31, UCMJ
Article 31 is divided into four subsections. The first
three regulate the activities of persons subject to the
Code when they are questioning or interrogating
persons. The fourth subsection prohibits the receipt into
evidence of any statement taken from an accused in
violation of the first three subsections.
Article 31 (a)—“No person subject to this chapter
may compel any person to incriminate himself or to
answer any question, the answer to which may tend to
incriminate him.” Compulsion and self-incrimination
are the keys to understanding this subsection. Evidence
is incriminating if it tends to establish guilt.
Interrogation is improper under Article 31(a) if it
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