Article 31b): Who Should be Required to Give Warnings?

Author:by CPT Manuel E.F Supervielle


KOperson subject to this chapter may Interrogate. or request any statement from an accused or person suspected of an offense without first informing him. . .

Thus begins article 31W of the Uniform Code of Military Justice The words are not difficult to understand. The grammatical construction 18 not complex. Why then has there been 30 much debate and difference of opinion over this simple phrase? Who 18 supposed to be the subject of the command in the phrase7 Who IS or should be re-quired to warn under article 31(b)?

Military Judges at all levels have wrestled with this mue since Mat- 31, 1981, the effective date of article 31. Even the Court of Mill-tary Appeals has found It difficult to reach B con8ensus on this ques-tion and to maintain any con~ensua over time In fact, mnce 1963 when the Court of Military Appeal8 first faced this issue in United States L Wilson,' the judges on the court have devised four different tests to answer the question of who is required to warn under article 31Ib)

The test currently in force 16 the Dugo "officiality plus perception" test.' As recently 8s 1987, however, Chief Judge Everett expressed reservations about the continued validity of the Duga test.' The

Some tests endured longer than others

'Captam Judge Advocate Generavr Corps Currently asrigned to Headquarters. US Arm) Peifern Command Ft Shafter. Hauaii Formerly Chisf of Hilitary Jus-lice 19th Support Command, Korea. 1986-1987, Trial Counsel and Defense Caunrel, Ft Sreram. Georgia, 1982.1985 B A , Si Hary 6 Cnluersrg. 1978, J D , Univeriiry of Teras, 1981. LL MI The Judge Advocate General'% Sehoal 1588 Member of the bar of the State of Texas This art& WBI orlglnalli bubmltred m partral aanbfsetmn of the requirement8 of the 36th Judge Adweate Officer Graduate Course

'Urnfarm Code of Milltar) Juafice air 311bl, 10 U S C 6 8311bl 119821 [hereinafter UCMl

98 c ni R 48 $c ni A 1953~'See infra notes 158-212 and aceampsnynp text'United States Y Dugs 10 M J 206 (C M A 19811 The Due0 feir set out two conditions before Article 311bi ~,ammgaare required II rhe quesuoner must be acting m anofhc>al capaciiy, and 21 the subpect DT accvbed musf perceive the official nature of the q"e%tlonmg

'Cnited State8 v Jones, 24 hl J 367, 369 'C hl A 1987) (Everett C J concurringi E ~ e n thoughtheDug.testhaibeenused bvtheCourtaiYilitar?Appeal.sinre 1581Chief Judge Everett said that a persuarwe argument could be made aga~nsf the hrlt


to Military Rule ofEwdence 305(cl best summarizes the confusmn in this area of the law It states in pertinent part rhat "Rule 3061~1basically requires that those persons who are requred by 6tatuTe IO give article 311bi warmngs give such warmnga The Rule refrains from specifying who must plve such warmngs ~n VEW of the unsettled nature of the ease law ~n the area I 6

The 'unaettled nature of the ease law in this area" leaves a great deal of rnaneuvenng room for defense murid to argue for the exclusion of an unnamed confessions Tnal counsel must be famlhar wlth the reasoning and policy objectives of the Dug= test. as well as other tests that may be advanced by 8 resourceful defense counsel. toper-suasively argue for admiailon of unwarned confessions

To properly answer the question of who mudt warn under article 31(bl, It 1s first necessary to underatand how subsection rbl relates to the other sections of article 31 and to the military rules of evidence Subsection chi 1s only one piece of a large, intricate blanket of protection that has been sewn together over centuries, using marenal from different sources The blanket protects persons suspected or accused of a crime ~n the military. and at the same time It protects the judicial process. Focusing exclusively on the iswe of who must warn without considering the other facets of article 31 would be like looking only at one section of the large blanket This kind of examination would not yield an appreciation of how the entire blanket protects mdiwduals and thejudirial process Thus, to fully appreciate the policy objectives underlying the different tests devised by the Court of Military Appeals for answering the central question of this article, an overview of the law 18 necessary. Only from auch a vantage point can the complexity and purpoae of the law be appreciated

To prmide the proper vantage point for analysis. part I1 of this article will examine the historical origins and development of the nght againat self-incnmmatmn, the common law rule of confessions, and the due process voluntariness doctrine Part I11 will explore in detail the development of the same legal principles in the United States Army, and by 1950, all of the armed forces Part IV will dis- condition of the Dugv tert. but that after further reflection. [he believe dl IDvgal to have been correcrli decided ' Id

'Manual for Courts Mama1 United Starea, 1986, MII R Lvid 3051~anal?ils

helemairer HII R EIid 1

19891 ARTICLE 3UbI

CUES the four tests dexised by the judges of the Court of Military Appeals to anmer the central question of this article Specifically, part IV ail1 enamine the rationale and policy objectives underlying each test. as well as the strengths and weaknesses ofeach test. Finally, the article will address the question of who should *am under article 31ib1.


The law of confeBsion6' consists of several rules. mplementmg separate policy objectives, used to decide the admissibility of an ac-cused person's out-of-court confession This part of the article will

summarize the historical development of the right against self-incnmination,10 the common law rule of confessions, and the fourteenth amendment due process voluntariness doctrine. Together, these legal pnnc~ples form the foundation of the law of confesemne

The right agamst self-incrimination and the common law rule of confessions originated during different cenrunes and for different reasons. The right against self-menmination originated dunng the sixteenth century in England. One of Its primary objectives was to shield the accused person's thought process from governmental mru. mon seeking incriminating mformatmn for use at a cnmmal proceeding." The common law rule of confessions originated in En- new wrinkles rere addsd thereaiter, but these ruled stood imuallg mtaci untd rhe 1862 codification lTlhe Amcles for the Gmernmentstood in 1050 aere eSsentially unchanged from 1862Svordi and Scales 10-11 119% Thlr altlcle foeusee on tagalnsr relfmcnmmafmn and the common la+ rde of coBJ if occurred m the Army

gland during the eighteenth century Its objective was to exclude un-trustworthy out-of.court The due procees clause of the fourteenth amendment to the Umted States Cansntutmn was ~ n - corporated into the American law of confessmns in the fimt half of 1900.2 Its obpctwe was to insure famess in the crminal JUStlCe pro- Article 31 brought these different legal principles together for the first time. To fully understand article 31 one must firat undersrand the historical foundations far the creation and development of the principles that make up article 31 In the ivords ofJurtlce Frankfurt-er 'The [nghtl againar self-mcrlminatmn IC a specific provision of which It IS pecuharly true that a page of history 1s worth a volume

of logx "'3

  1. THE HISTORICAL DEVELOPMEST OFTHE RIGHT AGALVST SELF-I~CRIi~l.~ATIO~~- Fifteenth-century England had three different systems for the admimsrration of criminal law: the common Ian system, the eccle-siastical legal system, and the Star Chamber legal syatem I' The common law system xas accusatorial in nature. that 1%. the cornmumty accused an alleged wrongdoer of a crime and then the state accused him by meana of a grand jury indictment Trial procedure consiared of m-murt examination of witnesses and of the defendant The types of crimes prosecuted were such offenses as larceny. robbery. assault and other 'common" offenses

    The edeeiastical courts and the Star Chamber proceeded in aninqumtarial manner The ecclesmsncal courts tried to expose religious heretics. and the Star Chamber tried TO uncover persons who


    19891 ARTICLE 31(b)

    held seditious beliefs In these courts, an official administered anoath ez officm" to the defendant and ordered him to "tell the truth to the full extent of his knowledge as to all things he would be ques-tioned about, without [being advisedl . . whether or not he was ae. cued or of the nature of the questions before administration of the oath "le

    The oath ex officm compelled the defendant to incriminate himself if he held opinions that were offensive to the crown or to the church The compulsion resulted from the "choices" given to the defendant. he could refuse the order to talk, and be held in contempt of court; he could enswer the questions truthfully. and merimmate himseli; or he could lie under oath, and commit perpry.'* This "cruel tnlemma" left the defendant no real choice. The eompulsmn was legal in the sense that the order to testify came from a court

    During the next two centuries. the basic unfairness of the procedures employed by the Star Chamber and ecclesiastical courts led to growing opposition to the use of the oath ex officmzo By 1604 the first Parliament of James I presented the king a petition asking that the oath er offie~o "whereby men are forced to accuse themselves, be more sparingly used '"' Opposition to the use of the oath ex officLo in combination with an order to testify intensified By 1641 Parliament abolished the Star Chamber and elimmated the criminal Jurisdiction of the ecclesiastical courts. The u8e of the oath ex offiao was abolished ~n the same year 22 These reforms, however important, did not establish the right against self-incrimination

    Defendants were usually not examined upon oath by the common law courts, but they were questioned freely about criminal activities and pressed by the Judges to amwer Protests against...

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