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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
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