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Procedures for Administering a Warning Under Article 31, UCMJ
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Applicability to NJP Hearings - 14135_83
statement identical (or otherwise) to the first involuntary statement. 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 this  effect: “You are advised that the statement you made on cannot and will not be used against you in a subsequent trial by court-martial.” 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 necessary. 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. During 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 additional  crime. 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. Many 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 court’s 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 located. 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 are  required. 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  one’s  self  upon  request  is  considered  a neutral act. An exception to this general rule arises when the service member is suspected of carrying false identification. 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. 4-4

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