Custodial Interrogations

While custody might imply the jailhouse or brig, the courts have interpreted this term in a far broader sense. Any deprivation of one's freedom of action in any significant way is custody for the purpose of the counsel requirement. Two examples will highlight the broad definition of this concept:

1 Suppose Seaman Arm is taken before his CO,

Captain Mad, for questioning. Seaman Arm is not under apprehension or arrest; furthermore, no charges have been preferred against him. Captain Mad proceeds to question Seaman Arm about a broken window in the former's office. Captain Mad has been informed by Petty Officer Isawit that he saw Seaman Arm toss a rock through the window. Here, Seaman Arm is suspected of damaging military property of the United States. In this situation, with Seaman Arm standing before his commanding officer (CO), it should be obvious that Seaman Arm has been denied his freedom of action to a significant degree. Seaman Arm is not free simply to leave his CO's office or to refuse to appear for questioning. Thus, Captain Mad would be required to advise Seaman Arm of his counsel rights as well as his Article 31(b) rights. If Captain Mad does not, Seaman Arm's admission that he broke the window would be inadmissible in any forthcoming court-martial. . Seaman Dopper is suspected by the CO of having

marijuana in his possession. The CO directs him to report to the NCIS for questioning. Upon arrival at NCIS, Seaman Dopper is in custody for the purpose of counsel and Article 31 warnings.

As a general rule, advice to the accused of his or her 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 prehearing interrogation), but is to be advised of the right to consult with independent counsel before making a decision on acceptance/rejection of NJP. Observe, however, that no statement made at NJP without warnings about 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 which the accused must be informed? 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, 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. Unless the accused waives his or her 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 counsel of his or her own choice at his or her own expense. The accused has the absolute right to consult with counsel before the interrogation and is entitled to have counsel present during the interrogation.

Spontaneous Confessions

One further circumstance is worthy of discussion. Suppose a service member voluntarily walks into the legal officer's office and, without any type of interrogation or prompting by the legal officer, fully confesses to a crime. The confession would be admissible as a spontaneous confession even though the legal officer never advised the service member of any rights. As long as the legal officer did not ask any questions, no warnings were required. There is also no legal requirement for one to interrupt a spontaneous confession and advise the person of his or her rights under Article 31 even if the spontaneous confessor continues to confess for a long period of time. If the listener wants to question the spontaneous confessor about the offense, however, proper Article 31 and counsel warnings must be given for any later statement to be admissible in court.

RIGHT TO TERMINATE THE INTERROGATION

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

FACTORS AFFECTING VOLUNTARINESS

The following factors may affect the admissibility of a confession or admission. For instance, it is possible to completely advise a person of his or her rights, yet secure a confession or admission that is completely involuntary because of something that was said or done. . Threats or promises-To invalidate an otherwise valid confession or admission, it is not necessary to make an overt threat or promise. For example, after being advised fully of his or her rights, the suspect is told it will "go hard on him or her" unless he or she tells all. This clearly amounts to an unlawful threat. . Physical force-Obviously, physical force will invalidate a confession or admission. _{Consider this} situation. SN Thief steals SN Victim's radio. SN Pal, a friend of SN Victim's, learns of SN Victim's missing radio and suspects SN Thief. SN Pal beats and kicks SN Thief until SN Thief admits the theft and the location of the radio. SN Pal then notifies the investigator, Petty

Officer Cop, of the threat. Petty Officer Cop has no knowledge of SN Thief having been beaten by SN Pal. Petty Officer Cop proceeds to advise SN Thief of his rights and obtains a confession from SN Thief. Is the confession made by SN Thief to Petty Officer Cop voluntary? This situation raises a serious possibility that the confession is not voluntary if SN Thief were in fact influenced by the previous beating received at the hands of SN Pal, even though Petty Officer Cop knew nothing about this. Therefore, cleansing warnings to remove this actual taint would be required.

. Prolonged confinement or interrogation- Duress or coercion can be mental as well as physical. By denying a suspect the necessities of life such as food, water, air, light, restroom facilities, or merely by interrogating a person for an extremely long period of time without sleep, a confession or admission may be rendered involuntary. What is an extremely long period of time? To answer this, the circumstances in each case as well as the condition of the suspect or accused must be considered. As a practical matter, judgment and common sense should provide the answer in each case.

CONSEQUENCES OF VIOLATING THE RIGHTS AGAINST SELF-INCRIMINATION

Any statement obtained in violation of any applicable warning requirement under Article 31, Miranda/Tempia, or Mil.R.Evid. 305 is inadmissible against the accused at a court-martial. Any statement that is considered to have been involuntary is likewise inadmissible at a court-martial.

The primary taint is the initial violation of the accused's right. The evidence that is the product of the exploitation of this taint is labeled fruit of the poisonous tree. The question to be determined is whether the evidence has been obtained by the exploitation of a violation of the accused's rights or has been obtained by means adequately distinguishable to be purged of the primary taint.

Thus, if Seaman Pot is found with marijuana in her pocket, is interrogated without being advised of her Article 31(b) rights, and confesses to the possession of 100 pounds of marijuana in her parked vehicle located on base, the 100 pounds of marijuana as well as Seaman Pot's confession will be excluded from evidence. The reason-the 100 pounds of marijuana was discovered by exploiting the unlawfully obtained evidence.

The opposite of this situation also represents the same principle. As the result of an illegal search, marijuana is found in Seaman Stupid's locker. Seaman Stupid confesses because he was told that they had the goods on him and was confronted with the marijuana that was found in his locker. This confession is not admissible because it was obtained by exploiting the unlawfully obtained evidence.

When a command is concerned about what procedures to follow, or whether or not a confession or admission can be allowed into evidence, a lawyer should be consulted. Unlike practical engineering, basic electronics, or elementary mathematics, many legal questions do not have definite answers. On the basis of his or her training, however, a lawyer's professional opinion should provide the best available answers to difficult questions that arise daily.