Rights Warninrs in tlie Armed Services

• Author: Captain Fredric I. Lederer
• Pages: 01

1. INTRODUCTIOK

   The right against self-incrimination has been considered a fun. damental principle of American law since at least the ratification ofthefifth amendment to theconstitution in 1791.: Despite this,it took some 175 years before this right was meaningfully k-plemented by requiring that persons suspwted of crime be warnedof their right toremain silentbeforea custodialpoliceinterrogatian could take place.' While the warning requirement burst upon the civilian population in 1966 with the Supreme Court's decision in thecaseofMirando v. Arizona? a similar andinanesensebroader warning requirement had been in effect in the Army since 1948' and in the armed services generally since 1951 Indeed, the military requirement was noted with approval in the Supreme Court's opinion in Mvonda.6 As we near the l h h anniversary of

   *This artrcle LI adapted from B paper submitted m partisl fvlfillmenr of the IO~uuemenfsfar the LL M degree at the Univemty of Virgmia School of Law. The opmmons and conclusionspresenred in thisarticle arerhoseoftheavihorsnddonot necessaril) reprerent the views of The Judge Advocate General's School 07 anyother gmernmental agency.

   **JAGC ti S Arm) Instructor. Cnminal Law Division, The Judge Adiocate General s School ti S Arm> Lecturer ~n Lar Umrersif) of Vnmnia B S I 1968. Palitechnir Inetitute of Sew York. J D , 1971 Columbia L'miersify LL M, 1916 Cmierilti nfvwymla MemberoffheBarsofNeu York,theU S CourtofM~I~~ari. Apverlr and the L'S Court of Appeals far the Second Circuit

   Mirando and perhaps it.. impendin eema pdrtlC"l'%rI\ .1pprc>pr hawd ~ a r n i n g requireme

   Properly used. the term "nght against seli-ini=iminat,on."~~t~~~ spenfically to the right of an individual to refuse to make an ~n-cnmmatmp statement Strictly speaking. the nght does not in-rolbe the v o l ~ n t a n n e ~ ~ of a statement made when theripht LS not Inioked-an issue that 1s determined by the law of confessionsDespite this differentiation, the two distinct legal doctrines havetended to merpe m the United States t i onl) because the .Miianda warning requmment both implementsthe basic nght by inform-mg a suspect of 11s existence and at least in theory tends to make a statement iaiuntar) by interrupting thepossibly C O ~ T C L Y ~

   nature of

   a custodial int,rrupation.AccordIngly. a proper understanding of the warning requirements in the milltar). requlresa bnefhistorical review of both the rlpht against self->ncrimination and the \dun tannes~doctnne in the armed ~ervices

   11. HISTORY OF THE MILITARY RIGHT AGAINST SELF.1NCRIMINATION

   Although It 1s difficult to find the specific ongins of the military right against self-incnmmatian m the United Stares e it is clear thataspectsafthenghtexistedby 1F62atthelatestiUnti11878the mditar, accused wasconsidered an incompetent witnessandunfit to take the witness stand in hm own behalfl ' thus rendermg the issue academic insofar BE formal ludicid incerrogatian of the ac. cusd was concerned Khen Congress removed the disability by statute. however it took care to make 11 clear that the accused did not have to take the stand and that romment as to his failure to do

   IWBI MILITARY hICHTS WARNINGS

   so could not be made:. The application of the right to witnesses at courtsmartial remains unclear until 1916 although thereis reason to believe that the fifth amendment right was considered binding.'l Statutory enactment of the right against selfincrimination appears to stem dlrectly from the Army's attempt to enforce itsright to compel attendance of civilian witnesses at trials by court-martial by certifying the witness' refusal to appear or testify to a federal district court for trial of the issue. When Congress enacted the certification provision in 1901, it included the proviso "that no witness shall be compelled to incrimutate himself or to answer m y question whxh may tend to incriminate or degrade him."'3 When in 1912 Major General Enach Crowder. then Judge Advocate General of the Amy, presented the first major revision in the Articles of War in mer one hundred years, his code lacked any reference to a general right against self-incrimination." However, by 1914 the congressional hearings on the proposed revision contained a new proposed Article of )Tar 25 which declared.

   No wfne~sbefore a milltar? coun commasmn, court ofinqury or board.

   or before en) offlcer rnlhtari 01 eivll.dengnated to fake a deposinonta be read in e\idence before a mhtary CDYT~, c ~ m m i s ~ m , emit of mquui or board shall be compelled ro~n~rimmafehmselforto answeranyqueetiond uhrch my rend to mcriminste or degrade him ,In his testimony before theSenateCommitteeonMilitary Affairs, General Crowder explained that because the self-incrimination ex. emption had originally been attached to the certification act,the ~on~truelion

   U B B ad?ancd that rhia language wuld not apply to any other w t n e ~ ~ e s than those named m the act itself It thus did not protect any and all wtness [sic] agamsf self-incrmmarm but only those described m the act m ahich the pmveo appears So I struck out that pm'iso and have put ~f m the next article. ahere 11 wll be of general Bpplleatlo" ./

   Congress accepted General Crowder's self4ncrimination provision

   According IO the smute. the accused '.hBlI.BthlbO,nrRjvear butnarotherwm 18 failure to make such reqreat shall not create any f of March 16. 1876, ch 7; 20 Stat 30at the Su~remo

   Court's fifth amendment decisions afterthe ~ t a t u r e ~ ~ s adopted B~THROP supranote

   10. ai 386 n 55 See alia Ivlener. supra note 5 at 277 76 nn 395. 396 K,h>eh mdlcate that ~ammngi

   \\ere gnen m an 1606 trial and recogmred in pan bi 1795".~ctafMarch2,190l,ch 609 81 31Star 951 SeealsoHeaiingsanS 3191Bsiorr the Subcomm on Milifar) Aiioris a/ the Senate Comm on .Ililiiaii Aiiairs 64th Cong IrrSers 11916lasprinlidinS REP So 130 6ifhCang lstSess 52,1916) [hereinafter nted as S REP So 1301a Srr # m e d i i Hearings on H R 23628 Before the House Comm on Militar) A/ laws. 62d C o w , 2d Sew 36 119121' e S. REP No 229,63d Cone 2d Sess 4, at art 25 119111

   S REP NO 130,6upra nore 13. at 53

   MILI'IARY L.AH REVIEW lVd I2

   and. renumbered. It becarr>eA;tirlttides of Bar were enacted u, 19161920 u hen the right against srlf-mcclude witnesses before officers conductvlg lnrestigatmns ,- No other statutory change took place, however. until the Eistan Act of 1948 ' It should be noted that before theElstan Act revismi, Arti-cle of War 24 dealt only with iudinal or quasi-iudinal interrogations The statute was silent as to pretrial police In

   terrogations or their equivalent Theaccused seemstohavehad the right to remain silent and to refuse to cooperate In such an m. vestigation However. no formal warnlng of that fan uas apparently required although evidenceexiststhat someform ofwarnmg was occasionally given by military mvestigators:$ The primary check on pretnal interrogation was inserted into the statute only m 1918: until then military due process. and the cammon law requirement that confessions be \duntars and not the improper coercion ormducementwas thtmspect'sanlj

   World War I1 was fought under the Artlcier of \Var of 1916 hirevised in 1920 Soon after the close of the war it became emdentthat substantial dissatisfaction existed wth the Amcles of \Valand indeed with military justice ~n general. Complamts .f drumhead justice were frequent and a number ef ~ ~ n g r e ~ ~ ~ i a committees as well as the Amencan Bar Association and otherlegal groups began investigations of miittan. lustice dunng thewar.>'

   As a consequence of this dissatisfaction Congress mactt I 6

   number of significant changes to the Artides of War. one of which involved the right against self-mrrmmatmn The vari~lus ~nvestigations into military lusticeduring theSecond\VurldKar had emphasized displeasure with results caused by dfferrniials in rank Particularly mportant in some cases was the potential for commissioned or noncommissioned officers to compel aubordmates to mcrminate themselves -. ID dn effort to pro! >de more

   aRainst abusive questioniny

   fairness in interrogations, Congress amended Article of War 21 by adding an entirely new second paragraph. Inmany respects the amendment was unique in American law. It indicated

   Theuseofcoercianorunlawfulinfluenceln any mannerrhatsae\erhi in/person to obtain m y statement. admission or confession from an, accused person OT wtneis. shall be deemed to be conduct to the preludlcr of ptm order and military dlsciplrne, and no such ssiement, admmian OI coniessmn shall be received m evidence by any court-martmi It shall be the dunof any peraon in obtainlng any statement from an accvsed to ad.m him thathedoesnothavetomakeanystatementarallrigard~ngrheoff~nscnfwhich he IS accused or belng mi,estigated that an) stelement by the ac cwed may be used a8 evidence agamst hm in B tnal by coun-martial

   It is difficult to overestimate thesignificance ofthis amendment. It departed from previous law in three significant ways. First. it adopted by statute the common law exclusionary rule already found in the law of confessions. Second. it adopted a warning requirement far the first timeinfederalstatute,andthird,itmadethe

   use of coercion or unlawful influence to obtain a statement, admis. sion or confession a criminal offense punishable by court.marria1. the expansion of Article of War 24 also made that Article expliritly applicable for the first time to an accused person as well .as a witness. Congress did not, however, clearly indicate whether the failure to warn an accused or witness ofhisnghtspursuant to Arti-

   94 Cos0 REc 184 119481 MI Burleson was aooarenrlv motivated at leaif in ~ a r '

   ly prisume that he web concerned with rhe problems peculiar to militan rank

   MlLlrAHl L\H HEVIEH I\ I.

   cle ui War 24 would be punishable ti\ ii~~rt-m.~rtml

   ~n the same fashion that coercion or unlxwiul influence would be. LVhether or not failure to warn constituted coerclan ,or unlnwiul influence was also left open by the statute

   The Elston Act was...