CLEANSING WARNING

When an interrogator obtains a confession or admission without proper warning, subsequent compliance with Article 31 will not automatically make later statements admissible. That is best illustrated with the following example:

Assume the accused or suspect initially makes a confession or admission without proper warnings. That is called an involuntary statement and, because of 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 statement identical (or otherwise) to the first involuntary statement. Before the second statement can be admitted, the trial counsel must make a clear showing to the court that the second statement was both voluntary and independent of the first involuntary, statement. There must be some indication that the second statement was not made only because the person felt the government already knew about the first confession and, therefore, he or she had nothing to lose by confessing again.

The Court of Military Appeals has sanctioned a procedure to be followed when a statement has been improperly obtained from an accused or suspect. In this situation, rewarn the accused giving all the warnings mandated. In addition, include a cleansing warning to this effect:

You are advised that the statement you made on cannot and will not be used against you in a subsequent trial by court-martial.

The use of those exact words is not required. However, the trial counsel needs to use a cleansing warning of this type to clearly show that the second statement was not obtained from the first statement. Therefore, it is recommended that cleansing warnings be given when necessary.

Another problem in this area concerns the suspect who has committed several crimes. Suppose the interrogator knows of only one of these crimes and properly advises the suspect about the known offense. During the interrogation, the suspect relates the circumstances surrounding desertion, the offense about which the interrogator has warned the accused. During questioning,

however, the suspect tells the interrogator that while in a desertion status, he or she stole a military vehicle. Immediately upon learning about the additional offense, the interrogator must advise the suspect of his or her rights involving that offense. Only after that has been done may the interrogator begin interrogating the suspect about the additional crime.

If the interrogator does not follow this procedure, statements about the desertion may be admissible, but statements on the theft of the military vehicle probably will be excluded.

ACTS AS STATEMENTS

When an interrogator obtains a confession or admission, some acts, not usually thought of as statements, fall within the privilege against self-incrimination. When one of these acts is requested from an accused or suspect, Article 31 warnings must be given. The following is a selected list of protected acts: . Asking an accused or suspect an incriminating

question. But asking questions to establish identity, such as name, rank, address, or service number, are authorized. . Requesting an accused or suspect to perform an

act requiring conscious mental cooperation. "Verbal acts" or acts that amount to a statement-for example, having an individual identify property by pointing to it-also fall within the prohibited area. Acts that do not require cooperation and that are not protected under Article 31 include fingerprinting, placing a foot in a cast, trying on clothing, exhibition of the body, and physical examination by a licensed physician. . Requiring an accused or suspect to submit to

degrading acts or acts that shock the conscience, For example, the use of a stomach pump to obtain stomach contents or the use of a catheter to obtain urine is a violation of the due process of law because of the degrading nature of such acts. The extraction of blood is not considered degrading and is permitted under certain specific conditions.

RIGHT TO COUNSEL

Supreme Court decisions interpreting the sixth amendment have held that an accused who is in custody and who is to be interrogated has the right to counsel, and further, the right to be advised of his or her right to counsel. The Court of Military Appeals has held this rule to be applicable to military custodial interrogation (U.S. v. Tempia, 16 USCMA 629, 37 CMR 249 [1967]). Failure to advise the accused of the right to counsel or failure to provide counsel as requested will trigger an exclusionary rule similar to that contained in Article 31d. Evidence obtained at an interrogation in the absence of the Tempia warnings will be inadmissible at a trial by court-martial. Now let us consider two remaining points: custodial interrogation and scope of the right to counsel.

Custodial Interrogation

Custody does not depend on execution of any technicalities of placing a suspect under arrest. Rather, a suspect is considered to have been taken into custody if he or she has been deprived of freedom of action in any significant way or could reasonably believe he or she is in custody. Two examples will highlight the broad definition of the concept: . Seaman Door is suspected by the CO of possessing marijuana. The CO directs Door to report to NCIS

for questioning. Upon arrival at NCIS, Seaman Door, for the purposes of counsel warning requirements, is in custody. l Airman Frost is seen downtown by the division

officer, who is aware that Frost had been restricted last week by the CO for 30 days. The division officer stops Frost. Frost is in custody.

As a general rule, advice to the accused of the 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 preheating interrogation). But the accused must be advised of the right to consult with independent counsel before making a decision concerning acceptance/rejection of nonjudicial punishment (NJP). Note, however, that no statement made at NJP in the absence of warnings as to 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 the accused? 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. The lawyer also must be 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 or be a civilian member of the bar of a federal court or of the highest court of a state. Unless the accused waives the 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 civilian counsel of choice at the

accused' sown expense. The accused has the absolute right to consult with counsel before the interrogation and to have counsel present during the interrogation.

An associated right, in itself not technically a part of the sixth amendment right to counsel, is that the accused has the power to end the interrogation at any time for any reason (or for no reason at all). If the accused indicates a desire to end the interview, it must be terminated. Failure to do so makes inadmissible any statement made after the request to terminate.

HOW TO GIVE THE WARNINGS

The foregoing discussions of fifth and sixth amendment rights have indicated that suspects have rights that mere witnesses do not have. Guidelines have been given to help you determine when a witness shifts to the suspect category. The concept of "in custody" has been explained. Now that you know how to fit the person who is being interrogated into the various categories, you are probably interested in a formula that ensures the admission of any evidence produced by an interrogation.

All suspects and accused persons are entitled to warnings flowing from rights guaranteed by both the fifth and sixth amendments. First, you must identify yourself by name and official position. Then, you should make the following statements to ensure that proper warnings have been given:

1. You are suspected of committing the following offense(s): [Describe the offense(s) here.]

2. You have the right to remain silent.

3. Any statement you do make may be used as evidence against you in trial by court-martial.

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?

9. Do you consent to making a statement?

Determining that the accused or suspect fully understands the rights is particularly important because in the absence of understanding, no intelligent choice can be made to exercise or waive the rights. A court may later look not only at the words used in giving the warning, but also at the suspect's age, intelligence, and experience. For example, a suspect who is drunk at the time of his or her apprehension and original warning should be readvised of his or her rights before any subsequent questioning.

An accused will be advised in accordance with the Suspect's Acknowledgement and Waiver of Rights form. The accused will sign 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.

ARTICLE 31b

Remember from our previous discussion under "Constitutional Considerations" that Article 31 b

imposes three requirements:

1. That the accused or suspect be informed of the nature of the accusation 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 may be used as evidence against him or her at a trial by court-martial. The person giving the advice must also make certain that (1) the accused understands this advice and (2) that the accused affirmatively waives his or her rights before any statement is obtained. Accordingly, a proper Article 31 warning must be given.

For example, the accused is suspected of stealing two wallets containing a total of $30. The Article 31 warning should be phrased as follows:

Seaman Brush, I advise you that I suspect you of stealing two wallets from the lockers of Seamen Boate and Doe 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 courtmartial. 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 accused. Neither is it in compliance with Article 31 to tell the accused that he or she need not "incriminate himself or herself."

If the accused indicates a desire to consult with a lawyer, ask no questions until a lawyer is obtained.

Likewise, if the accused does not wish to be questioned and has no lawyer present, ask no questions. If, after waiving the rights, the accused elects to make a statement or answer questions, the accused must complete and sign the Suspect's Rights and Acknowledgment form at the time the statement is recorded. If at all possible, have a witness present when the accused is informed of his or her rights and when the accused signs the form. If the accused orally waives the rights but refuses to sign the form, you may proceed with questioning. Make a note on the form to the effect that the accused has stated that he or she understands the rights, does not want a lawyer, wants to discuss the offense(s), and refuses to sign the form.

In all cases, complete the form as soon as possible. Make every effort to complete the form before any questioning begins. If you cannot complete the form at once, as in the case of the street interrogation, you may temporarily postpone completion of the form, but keep notes on the circumstances.