statement identical (or otherwise) to the first involuntary
Before the second statement can be
admitted, the trial counsel (TC) must make a clear
showing to the court that the second statement was both
voluntary and independent of the first involuntary
statement. There must be some indication that the
second statement was not made only because the person
felt the government already knew about the first
confession and, therefore, he or she had nothing to lose
by confessing again.
The Court of Military Appeals has sanctioned a
procedure to be followed when a statement has been
improperly obtained from an accused or suspect. In this
situation, re-warn the accused giving all the warnings
mandated. In addition, include a cleansing warning to
You are advised that the statement you made
cannot and will
not be used against you in a subsequent trial by
Although not a per se requirement for admission,
this cleansing warning will help the TC in meeting his
or her burden of a clear showing that the second
statement was not tainted by the first. Therefore, it is
recommended that cleansing warnings be given when
Another problem in this area concerns the suspect
who has committed several crimes. The interrogator
may know of only one of these crimes and properly
advises the suspect about the known offense. During
the interrogation, the suspect relates the circumstances
surrounding desertion, the offense about which the
interrogator has warned the accused.
questioning, however, the suspect tells the interrogator
that while in a desertion status he or she stole a military
vehicle. As soon as the interrogator becomes aware of
the additional offense, the interrogator must advise the
suspect of his or her rights about the theft of the military
vehicle before interrogating the suspect on this
If the interrogator does not follow this procedure,
statements about the desertion may be admissible, but
statements on the theft of the military vehicle that are
given in response to interrogation about the theft
probably will be excluded.
Acts as Statements
Up to this point, you may have assumed that Article
31 concerns only statements of a suspect or an accused.
This is correct, but the term statement means more than
just the written or spoken word.
First, a statement can be oral or written. In court, if
the statement was oral, the interrogator can relate the
substance of the statement from recollection or notes. If
written, the statement of the accused or suspect may be
introduced in evidence by the prosecution.
individuals, after being taken to an NCIS office and after
waiving their right to remain silent and their right to
counsel, have given a full confession. When asked if
they made a statement to the NCIS, they will often
respond, No, I did not make a statement. I told the
agent what I did, but I refused to sign anything.
Provided the accused was fully advised of his or her
rights, understood and voluntarily waived those rights,
an oral confession or admission is as valid for a courts
consideration as a writing.
Naturally, where the
confession or admission is in writing and signed by the
accused, the accused will have difficulty denying the
statement or attributing it as a lie by the interrogator.
Thus, where possible, pretrial statements from an
accused or suspect should be reduced to writing,
whether or not the accused or suspect agrees to sign it.
In addition to oral statements, some actions of an
accused or suspect may be considered the equivalent of
a statement and are thus protected by Article 31. During
a search, for example, a suspect may be asked identify
an item of clothing in which contraband has been
If, as indicated, the service member is a
suspect, these acts on his or her part may amount to
admissions. Therefore, care must he taken to see that
the suspect is warned of his or her Article 31 (b) rights
or the identification of the clothing is obtained from
some other source.
In most cases, however, a request for the
identification of an individual is not an interrogation;
production of the identification is not a statement within
the meaning of Article 31 (b) and, therefore, no warnings
Superiors and those in positions of
authority may lawfully demand a service member to
produce identification at any time without first warning
the service member under Article 31(b). Merely
identifying ones self upon request is considered a
neutral act. An exception to this general rule arises
when the service member is suspected of carrying false
In such cases, the act of producing
identification is an act that directly relates to the offense
of which the service member is suspected. The act,
therefore, is testimonial and not neutral in nature.