Applicability to NJP Hearings

Body Fluids 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 suspect’s or accused’s Article31 (b) rights, a service member who is in custody must be advised of additional rights. 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. Custodial Interrogations While custody might imply the jailhouse or brig, the courts have interpreted this term in a far broader sense. Any deprivation of one’s 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: 4-5