Rights Warnings in the Military: An Article 31(b) Update

• Author: by Captain John R. Morris
• Pages: 04

I. INTRODUCTION

On 5 May 1985, Article 31 of the Uniform Code of Military Justice IUCMJI celebrated its thirtyfifth anniversary as the cornerstone of the protection against compelled self-incrimination in the military.' The history of this provision has been an interesting-albeit complex-one. reflecting an intense effort to ensure the fairness of military

For the past three and onehalf decades, Article 31 has provided the following mandate to the armed services:

Art. 31. Compulsory self.incrimination prohibited

(a) No person subject to this [code] may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.

(bl No person subject to this [code] may interrogate, or request any statement from, an accused or a person 'Judge Advocate General's Corps. United States Army Currently amigned 88 a responsible attorney m the MlLtuy Personnel Law Branch. Admvlistrative LawDiviaon. Office af The Judge Advocate General, 1983-preaent. Formerly aiaigned as Attorney-Advmor to the Assistant General Counsel for Legal Couniel, Office of the Secretary of Defense, 1983.1986 Officer.m.Charge, Gelnhsusen Legd Center, Office of the Staff Jvdn Advaaw, 3d Armored Divison. 1982.83. Tnal Counael, Hanau Legal Center Ofhee of the Staff Judge Advaate, 3d Armored Dwi8mn. 1982: Defenre Counsel, U 5. Army Tnal Defense Service. Europe, with duty at Hanau Legal Center, 198142. J D Imnth honoral, Univeraty of Oklahoma, 1977 Completed 94th Army Judge Advocate Offieer Basic Course. 1980 Author of Opming Statement An Opportunity far Effaehue Defanee Aduoeaey, The Army Lawyer. Sep 1986. at 10, Rdabiliiofiue Pofennol of the Accused. Ham the Floodgatas B8.n Oprnrd on Senfancing*. 16 The Advmafs 75 119841, MRE 4Wb) A Care Study in "Whodunit?" 16 The Advaeste 51 119S41: ?he Pummetws of Judicial Conduct During an Oklahoma Jury Tml of Y Cnmind Defendant. 53 Okla. B. J 1307 119321, Constitunond L a w Subalntive Due Pmeerr end the Incompetent Organ Donor. 33 Okls L. Rev. 126 11830l. Consnfviianol Low. A Conatitutiond Andyns oi the NPU Okbhorno Abariian Sf~tute. 32 Okla. L.

Rev

13s 119791 Members of the bars of the United States Supreme Court, Uruted States Court of Appsds for the Tenth Circuit. United Ststea C o w of Mllituy Appeals, and the State of Oklahoma.

The Uniform Code of MiMary Juatice 10 U.S.C 49 801.940 119821 [hereinafter UCMJ] wm enacted on 5 May 1950. Pub. L. Na 81-60B. 64 SLaf. 11s 119501 Smce its enactment, AN& 31, 10 US.C 5 831, has newr been changed m either form Or content.

2See Lederer. Right8 Warnings an the Armed Services. 72 MJ. L Rev. 1, 2.9

119761.

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 as evidence against him in a trial by court-martial.

(c1 KO person subject to this [code] 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.

(dl 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 courtmartial.

Between 1951 and 1975, military court8 struggled to find the proper scope and effect of this Article, particularly with regard to subsection lb1.3 Since 1915, the Court of Military Appeals and the courts of military review have continued to papple with the intricacies of the Article 31(bJ protection. This article will review military decisions of the past ten years that have interpreted Article 31(b), articulate current guidelines utilized by military COUI~S,~and offer exampies of legislative, executive, and judicial actions that may improve ths codal privilege for the future.

11. THE REQUIREMENTS OF ARTICLE 31fb)

Any analysis of the types of problems confronting judicial attempts to interpret Article 31(b) must begin with the langvage of subsection Ibl itself. Professor Robert Meguire created the following matrix reflecting the four basic elements of this provision:

ELEMENTS ARmLElw

111 Who must warn? No person subject to this [code] 121 When is a warning required? may interrogate, or request any statement from,

(31 Who must be warned7 an accused or a person suspected of an offense

'Id. BL 8-46 62-54'The Military Ruler of Evidence. which codfled rights wmnm~s and procedures m the armed forces. w d also be &scussed m fhia article

19871 ARTICLE 311bl UPDATE

ELEMENTS ARmxmlu

(4) What warning is required? 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 as evidence against him in a trial by court.martial.6

Notwithstanding the apparent clarity of these elements, the answers to the questions they present have proved to be far from simple. Ten years ago, one miter concluded that the first twenty-five years of litigation and judicial interpretation made only one paint clear: virtually nothing involving Article 311b) has a plain meaning.5 During the past ten years, B "plain meaning'' has remained elusive,' but progress has been made to establish a logical framework in which answers are attainable. Further work, however, remains ahead.

A. WHO MUST WARN?

By its terms, Article 311bl applies anytime any soldier questions a suspect. Military courts, however, have been unwilling to apply Article 31 in such a literal fashion. In 8ome of the earliest cases fallowing enactment of the Uniform Code of Military Justice, the Court of Military Appeals fashioned the "official capacity'' test to gauge the requirement that "[nla person subject to (the UCMJ]" may question a suspect or an accused until rights warnings are given.8 This test focused on the "officiality" of the questioner's motives at the time of the questioning. If the questioner wan acting in an "official capacity" on behalf of the military, the interrogation fell within the scope of Article 311bl and warnings

'Mawe. The Warning Rspuiirrnrnr o/ AmcB 3I(bl. Who Must Do What to

'Lederer. supm note 2, at 11 ieasea through 19761

Urnfed States Y. Jones. 19 M J. 961. 966 (A C M.R 19861 lenses from the Court of Mllitan Appeals demonstrate that Lhe mferprstatmn of Artide 31ibl is "mythmg bar 'plo' "I

%g. C'nited States v Gibson. 3 C.M.A. 746, 752, 14 C.M R 164, 170 119641.

Whom and Whenl. 2 Md L Rev 1, 4 119581

were required.* On the other hand, if the questioner acted because of purely personal considerations (such as friendship with the 8wpectL Article 31 would not be triggered.10

Unfortunately, tho "official capacity" test did not completely resolve the "who must ward' issue, for it failed to analyze whether the questioner's military position or status could have caused the accused or suspect to respond," or whether the suspect or accused even perceived that official questioning was taking place.'Z

In 1915, then.Chief Judge Fletcher. in United Stares U. Dohle,I3 rejected the traditional "official capacity" test and sought instead to institute a "position of authority" standard to determine who must warn." This ceat focused on the state of rmnd of the suspect or accused by asking whether the position of the questioner could have subtly pressured tho suspect or accused Into responding to the inquiry.16 If 80, the questioner fell within the scope of Article 31(b).

Although the "position of authority" test seemed to more closely reflect the intent behind Article 3Ub) than did the "official capacity" test, it too was flawed. First, a questioner's "position" should be relevant only if it is tied to mnk or position differences between the questioner and the suspect or accused in accordance with the spirit of Article 3lib):'6 the fact that the questioner is,

'Id See United State8 V. say. 1 M.J 201. 203 & n.3 !C.M A. 19751.'%%a United Stales Y Beck. 15 C.M A. 333, 338-39, 3s C M R 305 310-11 !19861.

I

Compare Urnfed States V. Wheeler, 27 C.M R. 981, 994 !A.F B.R. 19591 lcivllivl pdcs officer bound by Article 311bll with United Stater Y Gibson. 3 C M A. 746. 752.55. 14 C.M.R. 164, 170-71 119541 Iprivste fvst class not w i t h scope of Article 3libil. See Lederer. supra note 2, st 13.

"Lederei, mpm note 2, at 13-14, 20-23.

"1 M.J. 223 1C.M A. 19751 In Dohie, B private fmrt e l m m custody responded to qveahona from a sergeant m his unit who had been dsfded as B guard Despite the sergeant's testimony rhal Dohle was a gmd friend and his questions were motivated solely by ius personal concern and bewilderment about the allegations,:he Court of MLtary Appeals held the hterrogstion molafad Article 31.

"Id. at 226 IFletcher C IT, m i

Cook. S , and Fermaon. S.J.. coneurrini in the r e d t by neparste opinions1

"Id at 225. 226 & n.4

"See Uruted SLafes V. Gibson. 3 C X A 716. 752. 14 C M R 164, 170 119541 I 'pmsumpdve ~memn'' implicit in ditary &supline and superiority1 see dm Unirsd States Y Harns. 19 M J 331, 343 n 3 IC M.A. 19661 ICox. J., Concurmg m the remit by separate opmioni, Urutad Siatea Y Parker. 15 M.J 146 153-64 1C.M.A. 19881 ICook, J., conuvring by ssparafe opmionl: Uruted States V.

Schnetder, 14 M.J. 189 193 1C.M A 19621, Cmted States V. Leais. 12 M.J 205, 206 ICMA 19821: Unilad Staler v Rsvenel. 20 M.J 842, 845 !A C M R 19651, Umtad States V. McDonald. 11 M,J 684. 686 IA F C.M.R 18821. patinon dmisd. 15 M.J. 171 ICMA. 19831

19871 ARTICLE 311b) UPDATE

far example, a guard, and that the suspect is in his custody does not necessarily mean that the requisite "subtle military pres. 8uTes" are at work t0 coerce a response." Moreover, the "position of authority" approach ignored the point (reflected in the "official capacity" test! that the motivation of the questioner is also relevant to the scope of...