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Page Title: Documenting the Warning
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4. You have the right to obtain and consult with a lawyer, either a civilian lawyer retained by you at your own expense, or, if you wish, a military lawyer who will be appointed to act as your counsel without cost. 5. You have the right to have a retained civilian lawyer or an appointed military lawyer present with you during this interview. 6. You have the right to terminate this interview at any time and for any reason. 7. Do you understand? 8.  Do  you  waive  your  right  to  counsel?  (If  the accused has such a right.) 9. Do you consent to make a statement? Ascertaining  that  the  accused  or  suspect  fully understands  his  or  her  rights  is  particularly  important, for in the absence of understanding there can be no intelligent choice to exercise or waive the rights. A court may later look not only to the words used in giving the warning, but also to the suspect’s age, intelligence, and experience  in  this  regard. Documenting  the  Warning Your command will likely have preprinted local forms that detail these rights. Typically the accused will be advised according to the form and will sign on the form to indicate that he or she has been advised of his or her rights. The form is then retained in case it becomes necessary to prove in court that the warnings were properly given. If your command does not have a preprinted form, a sample appears in appendix A-1-m of the JAG  Manual. When only the Article 31 warning is required (that is, when the accused is going to NJP and has no right to counsel),  the  warning  will  eliminate  references  to  the right to counsel and is given in the manner prescribed by the article itself. Article 31(b) imposes the three following   requirements: 1. That the accused or suspect be informed of the nature of the accusations against him or her 2. That the accused be told that he or she has the right to remain silent 3. That the accused be advised that any statement made by him or her maybe used as evidence against him or her at a trial by court-martial It is essential not only that the accused understands the advice given, but also that the person giving the advice makes certain (1) the accused understands this advice and (2) the accused affirmatively waives his or her  rights  before  any  statement  is  obtained. Accordingly,  a  proper  Article  31  warning  could  be phrased as follows: Example: (The accused is suspected of stealing two wallets  that  contained  a  total  of  $30.) “Seaman Thief, I advise you that I suspect you of stealing two wallets from the lockers of Seaman One and Seaman Two last night. I advise you that you have the right to remain silent and if you do say anything, what you say may be used against you as evidence in a trial by court-martial. Do you understand? Do you waive your rights and desire to make a  statement?” It is not sufficient merely to read Article 31 to the suspect or the accused. Neither is it in compliance with Article 31 to tell the suspect or accused that he or she need  not  incriminate  himself  or  herself. SEARCH AND SEIZURE What  is  a  search?  What  are  the  rights  of  an individual  being  searched?  What  procedures  must  be followed in requesting and conducting a search? What are the different types of searches? You may not be involved in conducting a search, but you should be familiar  with  the  procedures  for  preparing  the  paper work  associated  with  searches  and  the  rights  of individuals  being  searched.  The  following  discussions are intended to help you answer the previous questions and become familiar with the standards that must be followed to make sure a search has been conducted properly.  In  addition  to  these  discussions,  you  should familiarize  yourself  with  the  applicable  command instructions and JAG directives on search and seizure procedures. Each  military  member  has  a  constitutionally protected  right  of  privacy.  However,  a  service member’s  expectation  of  privacy  must  occasionally  be infringed  upon  because  of  military  necessity.  Military law recognizes that the individual’s right of privacy is balanced  against  the  command’s  legitimate  interests  in maintaining health, welfare, discipline, and readiness, as well as by the need to obtain evidence of criminal offenses. Searchcs  and  seizures  conducted  according  to  the requirements of the United States Constitution  will generally yield admissible evidence. On the other hand, evidence   obtained   in   violation   of   constitutional mandates will not be admissible in any later criminal 4-8

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