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. Interrogator questions the accused for 12 hours.
He or she does not allow the accused to eat or smoke,
makes him or her sit at attention, and does not allow head
calls. This is a violation of Article 31.
A failure to comply with Article 31 does not mean
that a guilty person goes free. There may be
independent evidence sufficient to convict. At the very
least, however, it does mean that the business of
prosecuting charges will be needlessly complicated. A
little experience will convince you that it is much easier
to give the required warnings-even at the possible
expense of making the interrogation more difficult than
it is to attempt to develop independent evidence
sufficient to convict several years after the fact when the
military conviction has been set aside on appeal. If in
doubt, warn!
Procedures for Administering a Warning
Under Article 31, UCMJ
As an LN, you may be required to administer Article
31, UCMJ warnings to individuals who are either
suspected of or accused of committing an offense under
the UCMJ. The following discussions should help you
become familiar with who can give the warning, when
to give the warning, and how the warning should be
given. Additionally, you should become familiar with
the accused’s right to counsel in connection with this
warning.
Who Must Be Warned?
Article 31(b) requires that an accused or suspect be
advised of his or her rights before questioning or
interrogation.
A person is an accused if charges have
been preferred against him or her. On the other hand, to
determine when a service member is a suspect is more
difficult. The test applied in this situation is whether
suspicion has crystallized to such an extent that a general
accusation of some recognizable crime can be made
against this individual. This test is objective. Courts
will review the facts available to the interrogator to
determine whether the interrogator should have
suspected the service member, not whether he or she in
fact did. Rather than speculate in a given situation, it is
preferable to warn all potential suspects before
attempting any questioning.
If an individual is to be questioned merely as a
witness, the individual need not be warned. If, however,
during the interview of a witness it becomes apparent
that he or she may have committed a crime, the
individual must be warned before continued
interrogation.
Who Must Give the Warning?
The plain language indicates that only the persons
subject to the UCMJ are required to give the warning.
Beware, however, of too literal a reading. Persons not
subject to the Code but employed by the armed forces
for law enforcement or investigative purposes must give
the warning.
This includes Naval Criminal
Investigative Service (NCIS) agents, security personnel
agents, and their counterparts in other services. Persons
acting on the request of the military in furtherance of a
military investigation also must warn.
When Are Warnings Required?
As soon as an interrogator seeks to question or
interrogate a service member suspected of an offense,
the member must be warned according to Article 31(b).
Fair Notice as to the Nature of the Offense
The question frequently arises, “Must I warn the
suspect of the specific article(s) of the UCMJ allegedly
violated?” There is no need to advise a suspect of the
particular article(s) violated. The warning must,
however, give fair notice to the suspect of the offense(s)
or area of inquiry so he or she can intelligently choose
whether to discuss this matter.
For example, Special Agent Igotcha is not sure of
exactly what offense Seaman Killer has committed, but
he knows that Seaman Killer shot and killed Seaman
Victim. In this situation, rather than advise Seaman
Killer of a specific article of the UCMJ, it would be
appropriate to advise Seaman Killer that he is suspected
of shooting and killing Seaman Victim.
Cleansing Warnings
When an interrogator obtains a confession or
admission without proper warnings, subsequent
compliance with Article 31 will not automatically make
later statements admissible. This is best illustrated with
the following example.
Assume the accused or suspect initially makes a
confession or admission without proper warnings. This
is called an involuntary statement and, due to the
deficient warning, the statement is inadmissible at a
court-martial. Next, assume the accused or suspect is
later properly advised and then makes a second
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