The Court of Military Appeals has ruled that the
taking of blood and urine specimens is not protected by
Article 31 and, hence, Article 3 l(b) warnings are not
required before taking such specimens. The Military
Rules of Evidence (Mil.R.Evid.) treat the taking of all
body fluids as nontestimonial and neutral acts and thus
not protected by Article 31. Although the extraction of
body fluids no longer falls within the purview of Article
31, the laws on search and seizure and inspection remain
applicable, and compliance with Mil.R.Evid. 312 is a
prerequisite for the admissibility in court of
involuntarily obtained body fluid samples.
Furthermore, even though urinalysis results are not
subject to the requirements of Article 31(b), they
sometimes may not be admissible in courts-martial
because of administrative policy restraints imposed by
departmental or service regulations.
Other Nontestimonial Acts
To compel a suspect to display scars or injuries, try
on clothing or shoes, place feet in footprints, or submit
to fingerprinting does not require an Article 31(b)
warning. A suspect does not have the option of refusing
to perform these acts. The reason for this rests on the
fact that these acts do not, in or of themselves, constitute
an admission, even though they may be used to link a
suspect with a crime. The same rule applies to voice and
handwriting exemplars and participation in lineups.
Applicability to NJP Hearings
The Manual for Courts-Martial (MCM) provides
that the mast hearing includes an explanation to the
accused of his or her rights under Article 31(b). Thus,
an Article 31(b) warning is required, and these rights
may be exercised. That is, the accused is permitted to
remain silent at the hearing.
While no statement need he given by the accused,
Article 15 presupposes that the officer imposing NJP
will afford the service member an opportunity to present
matters in his or her own behalf. It is recommended that
compliance with Article 31(b) rights at NJP be
documented on forms such as those set forth in the
Manual of the Judge Advocate General (JAGMAN),
appendix A-1-b, A-1-c, or A-1-d.
Article 15 hearings are usually custodial situations.
As discussed later, when a suspect is in custody, the law
requires that certain counsel warnings be given to make
sure of the admissibility of statements at a later
court-martial. Therefore, since counsel rights will not
usually be given at an NJP hearing, statements made by
the accused during NJP might not be admissible against
him or her at a later court-martial.
For example, if, during his NJP hearing for
wrongful possession of marijuana, Seaman Stoned
confesses to selling drugs, the confession might not be
admissible against him at his subsequent court-martial
for wrongful sale of drugs. Statements given at NJP by
the accused, however, are admissible against the
accused at the NJP itself, regardless of whether the
accused was given counsel warnings.
THE RIGHT TO COUNSEL
Besides a suspects or accuseds Article31 (b) rights,
a service member who is in custody must be advised of
These rights, sometimes called
Miranda/Tempia warnings, are codified and somewhat
extended by Mil.R.Evid. 305. Counsel warnings should
be stated as follows:
1. You have the right to consult with a lawyer prior
to any questioning.
This lawyer may be a civilian
lawyer retained by you at your own expense, a military
lawyer appointed to act as your counsel without cost to
you, or both.
2. You have the right to have such retained civilian
lawyer or appointed military lawyer or both present
during this or any other interview.
In addition to custodial situations, Mil.R.Evid.
305(d)(1)(B) requires that counsel warnings be given
when a suspect is interrogated after preferral of charges
or the imposition of pretrial restraint if the interrogation
concerns matters that were the subject of the preferral
of charges or that led to the pretrial restraint.
If the suspect or accused requests counsel, all
interrogation and questioning must immediately cease.
Questioning may not be renewed unless the accused
initiates further conversation or counsel has been made
available to the accused in the interim between his or her
invocation of his or her rights and later questioning.
While custody might imply the jailhouse or brig, the
courts have interpreted this term in a far broader sense.
Any deprivation of ones freedom of action in any
significant way is custody for the purpose of the counsel
requirement. Two examples will highlight the broad
definition of this concept: