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Scope of the Right to Counsel
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Legalman 3 & 2 - Navy Lawyer / Jag training guide manuals
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Documenting the Warning
Officer Cop, of the threat. Petty Officer Cop has no knowledge of SN Thief having been beaten by SN Pal. Petty Officer Cop proceeds to advise SN Thief of his rights and obtains a confession from SN Thief. Is the confession  made  by  SN  Thief  to  Petty  Officer  Cop voluntary? This situation raises a serious possibility that the confession is not voluntary if SN Thief were in fact influenced by the previous beating received at the hands of SN Pal, even though Petty Officer Cop knew nothing about this. Therefore, cleansing warnings to remove this actual taint would be required. .   Prolonged   confinement   or   interrogation— Duress  or  coercion  can  be  mental  as  well  as  physical. By denying a suspect the necessities of life such as food, water,  air,  light,  restroom  facilities,  or  merely  by interrogating  a  person  for  an  extremely  long  period  of time  without  sleep,  a  confession  or  admission  may  be rendered involuntary. What is an extremely long period of time? To answer this, the circumstances in each case as well as the condition of the suspect or accused must be considered. As a practical matter, judgment and common sense should provide the answer in each case. CONSEQUENCES OF VIOLATING THE RIGHTS  AGAINST  SELF-INCRIMINATION Any  statement  obtained  in  violation  of  any applicable  warning  requirement  under  Article  31, Miranda/Tempia,   or  Mil.R.Evid.  305  is  inadmissible against the accused at a court-martial. Any statement that is considered to have been involuntary is likewise inadmissible at a court-martial. The primary taint is the initial violation of the accused’s right. The evidence that is the product of the exploitation of this taint is labeled fruit of the poisonous tree. The question to be determined is whether the evidence has been obtained by the exploitation of a violation of the accused’s rights or has been obtained by means  adequately  distinguishable  to  be  purged  of  the primary  taint. Thus, if Seaman Pot is found with marijuana in her pocket, is interrogated without being advised of her Article  31(b)  rights,  and  confesses  to  the  possession  of 100 pounds of marijuana in her parked vehicle located on base, the 100 pounds of marijuana as well as Seaman Pot’s confession will be excluded from evidence. The reason—the  100  pounds  of  marijuana  was  discovered by exploiting the unlawfully obtained evidence. The  opposite  of  this  situation  also  represents  the same  principle. As the result of an illegal search, marijuana is found in Seaman Stupid’s locker. Seaman Stupid  confesses  because  he  was  told  that  they  had  the goods on him and was confronted with the marijuana that was found in his locker. This confession is not admissible because it was obtained by exploiting the unlawfully  obtained  evidence. When  a  command  is  concerned  about  what procedures to follow, or whether or not a confession or admission can be allowed into evidence, a lawyer should be  consulted. Unlike  practical  engineering,  basic electronics, or elementary mathematics, many legal questions do not have definite answers. On the basis of his or her training, however, a lawyer’s professional opinion should provide the best available answers to difficult questions that arise daily. HOW TO GIVE THE WARNINGS The  foregoing  discussions  of  Fifth  and  Sixth Amendment  rights  have  indicated  that  suspects  have rights that do not run to mere witnesses. Guidelines have been given for helping you determine when a witness shifts to the suspect category. The concept of in custody  has  been  explained.  Now  that  you  know  how to fit the person who is being interrogated into the various categories, you are probably interested in a formula that assures the admission of any evidence produced  by  an  interrogation. Warning the Witness Under Article 31, a witness enjoys two significant rights. He or she may not be compelled to incriminate himself   or   herself. Neither  may  the  witness  be compelled  to  make  a  statement  nor  produce  evidence before a military tribunal if the evidence is not material to the issue and tends to degrade him or her. Even though each witness should be advised of these rights, they are likely to become significant to you, the LN, when the witness shifts to the suspect category. Warning the Suspect All suspects and accused persons are entitled to warnings  flowing  from  rights  guaranteed  by  both  the Fifth and Sixth Amendments. A proper warning to one accused or suspected of an offense is as follows: 1.  You  are  suspected  of  committing  the  following offenses(s):  (Here  describe  the  offense[s]) 2. You have the right to remain silent. 3. Any statement you do make may be used as evidence against you in trial by court-martial. 4-7

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