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Article 31, UCMJ -Continued
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Acts as Statements - 14134_82
. Interrogator questions the accused for 12 hours. He or she does not allow the accused to eat or smoke, makes him or her sit at attention, and does not allow head calls. This is a violation of Article 31. A failure to comply with Article 31 does not mean that   a   guilty   person   goes   free.   There   may   be independent evidence sufficient to convict. At the very least,  however,  it  does  mean  that  the  business  of prosecuting  charges  will  be  needlessly  complicated.  A little experience will convince you that it is much easier to  give  the  required  warnings-even  at  the  possible expense  of  making  the  interrogation  more  difficult  than it  is  to  attempt  to  develop  independent  evidence sufficient to convict several years after the fact when the military conviction has been set aside on appeal. If in doubt,  warn! Procedures for Administering a Warning Under Article 31, UCMJ As an LN, you may be required to administer Article 31,  UCMJ  warnings  to  individuals  who  are  either suspected of or accused of committing an offense under the  UCMJ.  The  following  discussions  should  help  you become familiar with who can give the warning, when to give the warning, and how the warning should be given. Additionally, you should become familiar with the accused’s right to counsel in connection with this warning. Who Must Be Warned? Article 31(b) requires that an accused or suspect be advised  of  his  or  her  rights  before  questioning  or interrogation. A person is an accused if charges have been preferred against him or her. On the other hand, to determine when a service member is a suspect is more difficult.  The  test  applied  in  this  situation  is  whether suspicion has crystallized to such an extent that a general accusation of some recognizable crime can be made against this individual. This test is objective. Courts will review the facts available to the interrogator to determine   whether   the   interrogator   should   have suspected the service member, not whether he or she in fact did. Rather than speculate in a given situation, it is preferable   to   warn   all   potential   suspects   before attempting  any  questioning. If an individual is to be questioned merely as a witness, the individual need  not be warned. If, however, during the interview of a witness it becomes apparent that  he  or  she  may  have  committed  a  crime,  the individual   must   be   warned   before   continued interrogation. Who Must Give the Warning? The plain language indicates that only the persons subject to the UCMJ are required to give the warning. Beware, however, of too literal a reading. Persons not subject to the Code but employed by the armed forces for law enforcement or investigative purposes must give the   warning. This   includes   Naval   Criminal Investigative  Service  (NCIS)  agents,  security  personnel agents, and their counterparts in other services. Persons acting on the request of the military in furtherance of a military  investigation  also  must  warn. When Are Warnings Required? As soon as an interrogator seeks to question or interrogate  a  service  member  suspected  of  an  offense, the member must be warned according to Article 31(b). Fair Notice as to the Nature of the Offense The  question  frequently  arises,  “Must  I  warn  the suspect of the specific article(s) of the UCMJ allegedly violated?”  There  is  no  need  to  advise  a  suspect  of  the particular   article(s)   violated.   The   warning   must, however, give fair notice to the suspect of the offense(s) or area of inquiry so he or she can intelligently choose whether to discuss this matter. For  example,  Special  Agent  Igotcha  is  not  sure  of exactly  what  offense  Seaman  Killer  has  committed,  but he knows that Seaman Killer shot and killed Seaman Victim. In this situation, rather than advise Seaman Killer of a specific article of the UCMJ, it would be appropriate to advise Seaman Killer that he is suspected of shooting and killing Seaman Victim. 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  warning,  the  statement  is  inadmissible  at  a court-martial.  Next,  assume  the  accused  or  suspect  is later  properly  advised  and  then  makes  a  second 4-3

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