CHAPTER 4 CONSTITUTIONAL CONSIDERATIONS

The time has now come for a more searching examination of the Uniform Code of Military Justice (UCMJ) and of your duties as an LN in the area of military justice. Future lessons will be devoted to nonjudicial punishment (NJP), to courts-martial, and to the pretrial and posttrial activity associated with _{courts-martial.} Before we address these subjects, however, you must develop an understanding of several important constitutional principles-principles that, if not exactly followed, may invalidate the results of disciplinary proceedings.

The first of these constitutional principles that we will look at concerns the accused's rights under the Fifth Amendment and how Article 31 of the UCMJ is used to interpret these rights as well as the procedures used to inform the accused of these rights.

ARTICLE 31, UCMJ, AND THE FIFTH AMENDMENT

Article 31 of the UCMJ is a statutory enactment of judicial interpretations of the Fifth Amendment protection against compulsory self-incrimination. Like all statutes, Article 31 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 of discussing the rights of persons subjected to interrogation.

The concerns of Congress in enacting Article 31 were the interplay of interrogations with the military relationship. Specifically, because of the effect of superior rank or official position, the mere asking of a question under certain circumstances could be construed as the equivalent of a command. So, to make sure the privilege against self-incrimination was not undermined, Article 31 requires that a suspect be advised of specific rights before questioning can proceed.

PREINTERROGATION WARNINGS

Before an individual can be questioned on an alleged crime that the individual is suspected of committing, that person's rights as afforded by the U.S. Constitution must be explained. This explanation of the individual's rights is called a preinterrogation warning.

To help you understand this warning, you will examine 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 or she 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 applicable to the military a decision of the Supreme Court of the United States. That decision declared if an accused person is interrogated with a view toward using his or her statement in evidence against him or her, 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 primarily interested with real world ramifications of these rights. When and by whom must a suspect be warned? What is a valid warning? What are the consequences of a failure to warn?

Article 31, UCMJ

Article 31 is divided into four subsections. The first three regulate the activities of persons subject to the Code when they are questioning or interrogating persons. The fourth subsection prohibits the receipt into evidence of any statement taken from an accused in violation of the first three subsections.

Article 31 (a)-"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 of a crime. Notice that the article deals with persons, 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 where 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. If the accused chooses to take the stand to testify on any or all of the charges against him or her, the accused may be compelled to answer any questions on the charge or charges about which the accused did testify, even though the answer would incriminate him or her.

The accused may, however, take the stand and limit his or her testimony to a collateral issue. He or she would then retain his or her privilege against self-incrimination as to all other issues.

Example: Prosecution offers a statement of the accused into evidence. The accused takes the stand to testify about the voluntariness of the statement. Trial counsel, on cross-examination, asks the accused "But isn't your statement true?"

This question is improper, not only because the truth of the offered statement is immaterial to its voluntariness, but also because the accused may not be compelled to answer the question. The accused may assert his or her right against self-incrimination. Similarly, the accused who is defending against more than one specification may elect to take the stand and limit his or her testimony to less than all the offenses charged. If he or she does this, the accused retains his or her privilege against self-incrimination as to the offenses about which he or she does not testify.

On the other hand, a witness may be compelled to come to court, to take the stand, and to testify. However, the witness may not be compelled to incriminate himself or herself.

The witness' privilege against self-incrimination is personal. He or she must assert it personally. When he or she does, the ruling officer, usually the military judge, will decide if the answer will in fact incriminate the witness. If the ruling officer decides that it will not incriminate the witness, the ruling officer will direct the witness to answer. If the ruling officer is incorrect in his or her determination, the answer cannot later be used in a trial against the witness. This is because the answer will have been compelled in violation of Article 31(a).

Article 31(b)-"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 and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and 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. The previous examples indicate that it is the person conducting the hearings who must concern himself or herself with Articles 31(a) and 31(c). On the other hand, as an LN, you will be intimately involved in pretrial and investigative interviews with suspects, and you must understand and comply with Article 31(b) to guarantee the admissibility of any statement elicited.

Article 31(c)-"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 prevents the admission of immaterial or irrelevant evidence. It is important to notice that the witness may be compelled to answer, no matter how degrading the answer may be, if the court determines the evidence to be relevant.

Article 31(d)-"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. . Interrogator tells the accused that if he or she does not make a statement the interrogator will see that the accused's wife is arrested. This is a violation of Article 31. . 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. This is a violation of Article 31.

. Interrogator questions the accused for 12 hours.

He or she does not allow the accused to eat or smoke, makes him or her sit at attention, and does not allow head calls. This is a violation of Article 31.

A failure to comply with Article 31 does not mean that a guilty person goes free. There may be independent evidence sufficient to convict. 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 it is much easier to give the required warnings-even at the possible expense of making the interrogation more difficult than it is to attempt to develop independent evidence sufficient to convict several years after the fact when the military conviction has been set aside on appeal. If in doubt, warn!

Procedures for Administering a Warning Under Article 31, UCMJ

As an LN, you may 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, 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 31(b) requires that an accused or suspect be advised of his or her rights before questioning or interrogation. A person is an accused if charges have

been preferred against him or her. On the other hand, to determine when a service member is a suspect is more difficult. The test applied in this situation is whether suspicion has crystallized to such an extent that a general accusation of some recognizable crime can be made against this individual. This test is objective. Courts will review the facts available to the interrogator to determine whether the interrogator should have suspected the service member, not whether he or she in fact did. Rather than speculate in a given situation, it is preferable to warn all potential suspects before attempting any questioning.

If an individual is to be questioned merely as a witness, the individual need not be warned. If, however, during the interview of a witness it becomes apparent that he or she may have committed a crime, the individual must be warned before continued interrogation.

Who Must Give the Warning?

The plain language indicates that only the persons subject to the UCMJ are required to give the warning. Beware, however, of too literal a reading. Persons not subject to the Code but employed by the armed forces for law enforcement or investigative purposes must give the warning. This 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 warn.

When Are Warnings Required?

As soon as an interrogator seeks to question or interrogate a service member suspected of an offense, the member must be warned according to Article 31(b).

Fair Notice as to the Nature of the Offense

The question frequently arises, "Must I warn the suspect of the specific article(s) of the UCMJ allegedly violated?" There is no need to advise a suspect of the particular article(s) violated. The warning must, however, give fair notice to the suspect of the offense(s) or area of inquiry so he or she can intelligently choose whether to discuss this matter.

For example, Special Agent Igotcha is not sure of exactly what offense Seaman Killer has committed, but he knows that Seaman Killer shot and killed Seaman Victim. In this situation, rather than advise Seaman Killer of a specific article of the UCMJ, it would be appropriate to advise Seaman Killer that he is suspected of shooting and killing Seaman Victim.