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Applicability to NJP Hearings - 14135_83
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Consequences of Violating the Rights Against Self-Incremination
l Suppose Seaman Arm is taken before his CO, Captain Mad, for questioning. Seaman Arm is not under apprehension  or  arrest;  furthermore,  no  charges  have been  preferred  against  him.  Captain  Mad  proceeds  to question Seaman Arm about a broken window in the former’s  office.  Captain  Mad  has  been  informed  by Petty Officer Isawit that he saw Seaman Arm toss a rock through  the  window.  Here,  Seaman  Arm  is  suspected  of damaging military property of the United States. In this situation,  with  Seaman  Arm  standing  before  his commanding officer (CO), it should be obvious that Seaman Arm has been denied his freedom of action to a significant degree. Seaman Arm is not free simply to leave  his  CO’s  office  or  to  refuse  to  appear  for questioning.  Thus,  Captain  Mad  would  be  required  to advise Seaman Arm of his counsel rights as well as his Article 31(b) rights. If Captain Mad does not, Seaman Arm’s admission that he broke the window would be inadmissible in any forthcoming court-martial. . Seaman Dopper is suspected by the CO of having marijuana in his possession. The CO directs him to report to the NCIS for questioning. Upon arrival at NCIS, Seaman Dopper is in custody for the purpose of counsel and Article 31 warnings. As a general rule, advice to the accused of his or her right to counsel is required whenever an Article 31 warning is required. The major exception to this rule is that the accused has no right to counsel at an Article 15 hearing (as opposed to a prehearing interrogation), but is to be advised of the right to consult with independent counsel    before making a    d e c i s i o n    on acceptance/rejection of NJP. Observe, however, that no statement made at NJP without warnings about the right to  counsel  can  be  used  in  a  later  court-martial proceeding. Scope of the Right to Counsel What are the rights to counsel of which the accused must be informed? In the first place, counsel means a lawyer within the meaning of Article 27, UCMJ. The lawyer must be a judge advocate of one of the armed services, a graduate of an accredited law school, or a member of the bar of a federal court or of the highest court of a state. Unless the accused waives his or her right to counsel, a military lawyer will be appointed by military  authority  without  cost  to  the  accused. Alternatively, the accused has the right to retain a counsel  of  his  or  her  own  choice  at  his  or  her  own expense. The accused has the absolute right to consult with counsel before the interrogation and is entitled to have counsel present during the interrogation. Spontaneous Confessions One further circumstance is worthy of discussion. Suppose  a  service  member  voluntarily  walks  into  the legal   officer’s   office   and,   without   any   type   of interrogation or prompting by the legal officer, fully confesses  to  a  crime. The   confession   would   be admissible as a spontaneous confession even though the legal  officer  never  advised  the  service  member  of  any rights. As long as the legal officer did not ask any questions, no warnings were required. There is also no legal  requirement  for  one  to  interrupt  a  spontaneous confession and advise the person of his or her rights under Article 31 even if the spontaneous confessor continues to confess for a long period of time. If the listener  wants  to  question  the  spontaneous  confessor about  the  offense,  however,  proper  Article  31  and counsel warnings must be given for any later statement to be admissible in court. RIGHT TO TERMINATE THE INTERROGATION An associated right, itself not technically a part of the  Sixth  Amendment  right  to  counsel,  is  that  the accused has the power to terminate the interrogation at any time for any reason (or for no reason at all). If the accused indicates in any manner a desire to terminate the interview, it must be terminated. Failure to do so makes  inadmissible  any  statement  made  after  the request  to  terminate. FACTORS AFFECTING VOLUNTARINESS The  following  factors  may  affect  the  admissibility of a confession or admission. For instance, it is possible to completely advise a person of his or her rights, yet secure a confession or admission that is completely involuntary because of something that was said or done. . Threats or promises—To invalidate an otherwise valid confession or admission, it is not necessary to make an overt threat or promise. For example, after being advised fully of his or her rights, the suspect is told it will “go hard on him or her” unless he or she tells all. This clearly amounts to an unlawful threat. . Physical force—Obviously, physical force will invalidate a confession or admission. Consider this situation. SN Thief steals SN Victim’s radio. SN Pal, a friend of SN Victim’s, learns of SN Victim’s missing radio and suspects SN Thief. SN Pal beats and kicks SN Thief until SN Thief admits the theft and the location of the radio. SN Pal then notifies the investigator, Petty 4-6

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