Cleansing Warnings

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

Assume the accused or suspect initially makes a confession or admission without proper warnings. This is called an involuntary statement and, due to 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 (TC) 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, re-warn 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."

Although not a per se requirement for admission, this cleansing warning will help the TC in meeting his or her burden of a clear showing that the second statement was not tainted by the first. Therefore, it is recommended that cleansing warnings be given when necessary.

Another problem in this area concerns the suspect who has committed several crimes. The interrogator may know 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. As soon as the interrogator becomes aware of the additional offense, the interrogator must advise the suspect of his or her rights about the theft of the military vehicle before interrogating the suspect on this 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 that are given in response to interrogation about the theft probably will be excluded.

Acts as Statements

Up to this point, you may have assumed that Article 31 concerns only statements of a suspect or an accused.

This is correct, but the term statement means more than just the written or spoken word.

First, a statement can be oral or written. In court, if the statement was oral, the interrogator can relate the substance of the statement from recollection or notes. If written, the statement of the accused or suspect may be introduced in evidence by the prosecution. Many individuals, after being taken to an NCIS office and after waiving their right to remain silent and their right to counsel, have given a full confession. When asked if they made a statement to the NCIS, they will often respond, "No, I did not make a statement. I told the agent what I did, but I refused to sign anything."

Provided the accused was fully advised of his or her rights, understood and voluntarily waived those rights, an oral confession or admission is as valid for a court's consideration as a writing. Naturally, where the confession or admission is in writing and signed by the accused, the accused will have difficulty denying the statement or attributing it as a lie by the interrogator. Thus, where possible, pretrial statements from an accused or suspect should be reduced to writing, whether or not the accused or suspect agrees to sign it.

In addition to oral statements, some actions of an accused or suspect may be considered the equivalent of a statement and are thus protected by Article 31. During a search, for example, a suspect may be asked identify an item of clothing in which contraband has been located. If, as indicated, the service member is a suspect, these acts on his or her part may amount to admissions. Therefore, care must he taken to see that the suspect is warned of his or her Article 31 (b) rights or the identification of the clothing is obtained from some other source.

In most cases, however, a request for the identification of an individual is not an interrogation; production of the identification is not a statement within the meaning of Article 31 (b) and, therefore, no warnings ^{are required.} Superiors and those in positions of authority may lawfully demand a service member to produce identification at any time without first warning the service member under Article 31(b). Merely identifying one's self upon request is considered a neutral act. An exception to this general rule arises when the service member is suspected of carrying false ^{identification.} In such cases, the act of producing identification is an act that directly relates to the offense of which the service member is suspected. The act, therefore, is testimonial and not neutral in nature.