HOW TO GIVE THE WARNINGS

The foregoing discussions of Fifth and Sixth Amendment rights have indicated that suspects have rights that do not run to mere witnesses. Guidelines have been given for helping 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 assures the admission of any evidence produced by an interrogation.

Warning the Witness

Under Article 31, a witness enjoys two significant rights. He or she may not be compelled to incriminate himself or herself. Neither may the witness be compelled to make a statement nor produce evidence before a military tribunal if the evidence is not material to the issue and tends to degrade him or her. Even though each witness should be advised of these rights, they are likely to become significant to you, the LN, when the witness shifts to the suspect category.

Warning the Suspect

All suspects and accused persons are entitled to warnings flowing from rights guaranteed by both the Fifth and Sixth Amendments. A proper warning to one accused or suspected of an offense is as follows:

1. You are suspected of committing the following offenses(s): (Here describe the offense[s])

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? (If the accused has such a right.)

9. Do you consent to make a statement?

Ascertaining that the accused or suspect fully understands his or her rights is particularly important, for in the absence of understanding there can be no intelligent choice to exercise or waive the rights. A court may later look not only to the words used in giving the warning, but also to the suspect's age, intelligence, and experience in this regard.

Documenting the Warning

Your command will likely have preprinted local forms that detail these rights. Typically the accused will be advised according to the form and will sign on 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. If your command does not have a preprinted form, a sample appears in appendix A-1-m of the JAG Manual.

When only the Article 31 warning is required (that is, when the accused is going to NJP and has no right to counsel), the warning will eliminate References to the right to counsel and is given in the manner prescribed by the article itself. Article 31(b) imposes the three following requirements:

1. That the accused or suspect be informed of the nature of the accusations 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 maybe used as evidence against him or her at a trial by court-martial

It is essential not only that the accused understands the advice given, but also that the person giving the advice makes certain (1) the accused understands this advice and (2) the accused affirmatively waives his or her rights before any statement is obtained. Accordingly, a proper Article 31 warning could be phrased as follows:

Example: (The accused is suspected of stealing two wallets that contained a total of $30.) "Seaman Thief, I advise you that I suspect you of stealing two wallets from the lockers of Seaman One and Seaman Two 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 court-martial. 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 suspect or the accused. Neither is it in compliance with Article 31 to tell the suspect or accused that he or she need not incriminate himself or herself.