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Page Title: Applicability to NJP Hearings
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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

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