CONSTITUTIONAL CONSIDERATIONS

LEARNING OBJECTIVES: Describe and compare the fifth amendment to the Constitution with UCMJ, Article 31. Explain the preinterrogation warnings and the purpose of each part of Article 31.

The fifth amendment to the Constitution states, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law." This provision of the Constitution is fundamental to the American legal system and to a democratic way of life.

Article 31 of the UCMJ is a statutory enactment of judicial interpretations of the fifth amendment protection against compulsory self-incrimination. Like all statutes, it is of a lesser importance than the constitutional provision. It is, however, broader than the constitutional guarantee and will, therefore, be used as a basis for discussing the rights of persons subjected to interrogation.

PREINTERROGATION WARNINGS

Before an individual can be questioned concerning an alleged crime that the individual is suspected of having committed, that person's rights as afforded by the Constitution must be explained. This explanation of the individual's rights is called a preinterrogation warning. To help you understand more of what is involved in this warning, we will look at what is required by the fifth amendment, how Article 31 of the UCMJ incorporates the fifth amendment, and what procedures must be followed to properly administer a warning under Article 31, UCMJ.

FIFTH AMENDMENT RIGHTS

The fifth amendment to the U.S. Constitution provides, among other things, that no person "shall be compelled in any criminal case to be a witness against himself." The sixth amendment requires that the accused in a criminal case "be informed of the nature . . . of the accusation" and that he have the "assistance of Counsel for his defense." In passing the UCMJ, Congress enacted the spirit of the fifth amendment in Article 31. Much later, the Court of Military Appeals made a ruling that applied to the military. This ruling, based on a decision of the Supreme Court, made sure that if an accused person is interrogated in custody and the interrogator plans to use accused's statements in evidence, the accused has not only the right to have the assistance of counsel, but must be advised of this right before any interrogation. Since you will be dealing with persons suspected of offenses, you will be interested primarily with real-world ramifications of these rights. When and by whom must a suspect be warned? What constitutes a valid warning? What are the consequences of a failure to warn?

ARTICLE 31

Article 31 is divided into four subsections, the first three of which regulate the activities of individuals who question or interrogate others. The fourth subsection prohibits the receipt into evidence of any statement taken from an accused in violation of the first three subsections.

Article 31a

"No person subject to this chapter may compel any person to incriminate himself or to answer any question, the answer to which may tend to incriminate him." Compulsion and self-incrimination are the keys to understanding this subsection. Evidence is incriminating if it tends to establish guilt; interrogation is improper under Article 31 a if it compels the person being questioned to give responses that tend to establish his or her guilt. Notice that the article deals with "person(s)," not just suspects. The privilege against self-incrimination applies to both accused persons and to witnesses. The type of compulsion contemplated could involve an in-court situation in which either a witness or the accused is required to answer questions.

In court, the accused has an absolute right not to take the stand and testify. An accused who chooses to take the stand to testify on any or all charges may be compelled to answer any questions concerning the charge or charges about which he or she testifies, even though the answer would be incriminating.

The accused may, however, take the stand and limit testimony to a collateral issue. The accused retains the privilege against self-incrimination about all other issues.

On the other hand, a witness maybe compelled to come to court, to take the stand, and to testify. The witness, however, may not be compelled to say anything self-incriminating.

The witness's privilege against self-incrimination is personal; the witness must assert that privilege personally. When the witness asserts that privilege, the ruling officer, usually the military judge, will decide if the answer will, in fact, incriminate the witness. A ruling officer who decides that it will not incriminate the witness will direct the witness to answer. If the determination of the ruling officer is incorrect, the answer cannot later be used in a trial against the witness, as the answer will have been compelled in violation of Article 31a.

Article 31b

Article 31b imposes the following three requirements:

(1) No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation, (2) advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and, (3) that any statement made by him may be used against him in a trial by court-martial.

This is the subsection of Article 31 that will _be most significant to you. As a Master-at-Arms, you will be intimately involved in interrogations and interviews with suspects. You must understand and comply with Article 3 lb to ensure the admissibility of any statement elicited.

Article 31c

No person subject to this chapter may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade him.

This subsection is an enactment of a rule of evidence that precludes admission of immaterial or irrelevant evidence. The witness may be compelled to answer, no matter how degrading the answer may be, if the court determines the evidence to be material to the issue.

Article 31d

No statement obtained from any person in violation of this article or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.

This subsection is the teeth of Article 31. In general terms, it provides that evidence or statements obtained without affirmative compliance with Article 31 by the interrogator are inadmissible in a court-martial. A few examples are necessary to define the scope of unlawful influence and inducement: 

. The interrogator tells the accused that if he or she doesn't make a statement, the interrogator will see that the accused's wife is arrested. Violation of Article 31. 

. The interrogator tells the accused that if he or she makes a statement, the interrogator will see to it that the case will be handled in juvenile court and will not affect the accused's service. Violation of Article31. 

. The interrogator questions the accused for 12 hours straight. During that time, the interrogator makes the accused sit at attention, doesn't allow the accused to eat or smoke, and doesn't allow head calls.

A failure to comply with Article 31 does not necessarily mean that a guilty person goes free. Enough independent evidence may still exist to convict the person. 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 giving the required warnings is much easier than attempting to develop enough independent evidence for a conviction several years after the fact. It is easier even though such warnings could make the interrogation more difficult. NOTE: IF IN DOUBT, WARN!

PROCEDURES FOR ADMINISTERING A WARNING

LEARNING OBJECTIVES: Identify who must be warned and who must give the warnings, and explain when the warnings must be given. Explain a cleansing warning and when acts are considered statements. Describe right to counsel, custodial interrogation, and scope of the right to counsel. Explain how to give the warnings under Article 31b.

As an MA, you will 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, to whom the warning should be given, 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 31b may be misinterpreted to mean that this subsection is applicable only to persons accused or suspected of an offense. If an individual is to be questioned merely as a witness, the individual need not be warned. However, if an interview of a witness clearly reveals that the witness may have committed a crime, the individual must be warned before continued interrogation.

WHO MUST GIVE THE WARNING?

Article 3 lb may also be misinterpreted to mean that only the persons subject to the UCMJ are required to give the warning. Persons not subject to the Code but employed by the Armed Forces for law enforcement or investigative purposes must give the warning. That 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 give warning.

WHEN MUST THE WARNINGS BE GIVEN?

Before ANY question may be asked of an accused or a suspect, warnings must be given. Warnings given after questioning will not meet the criteria set in

Article 31 and will not correct any error that prevented the use of statements made before the warning was given. If during questioning of a witness the interrogator suspects that the witness has committed some offense, the interrogator must give the warning as soon as he or she suspects the person's guilt.