The Warning Requirement of Article 31(b): Who Must do What to Whom and When?

• Author: by Major Robert F. Maguire
• Pages: 01

"No PBPSSO~subject to this Chapter [Cadel may interrogate, or rewest

any statement from, an accused or B person Iuspeeted a! an offense without flrst inionning him of the nature of the accusation and advising him that he doer not hare to make any etatement regapding the offenae of which he 18 accused or Suspected and that any statement made bg him may be used &a evidence against him in a trial by esurt-msrtial."l

Article 31 of the Uniform Code of Militaly Justice throws a triangle of protection around accused persons. Subsection (a) incorporates the privilege against compulsory self-incrimination; subsection (d) proscribes the admission in evidence of involuntsw confessions and admissions. However, subsection (b) provides an entirely distinct and more sophisticated protection. Concepta of compulsion, coercion, and unlawful influence or inducement and their effect upon the will of a subject are not in point. The sole relevant question is: As a matter of fact, was the subject given a proper and timely warning advising him of his Article 31 rights? It is the failure to recognize this apparently obvious proposition that has caused much unnecessary confusion in this area.

The drafters of the Manual included among the instances of "coercion, unlawful influence, or unlawful inducement" in obtaining a statement that it had been obtained without the subject having been warned of his rights under Article 51 (b) This language was most inappropriate as it ignored the clearcut distinction made by Congress in Article Zl(d) excluding from evidence statements obtained "in violation of this article" and thoae obtained "through the use of coercion, unlawful influence, or unlawful inducement." It is readily apparent that the first of these categories must apply to statements obtained without a warning and, therefore, that the absence of a warning does not, as such, have any application to the second category. If a warning has not been given. when required,

* This articie was darted from a thesispreaented to The Ju,&e AdYmste sions exwessed herein are those a i the author and do not neeeiiarilg represent the viewe of The Judge Adboeate General's School or any other

Member, StaPP and Faculty, The Judge Advoeate General's Seboqi, U. S. Army, Charlottenville, Virgi?la: member of the Pennsylriama State Bar; graduate of the University of Pennsylvania Law School.

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1 Art.al(b),UCMJ, lQU.S.C.831(b) (Supp.IV).1 Par. 14Oa. MCM, 1051.*co 7@18 1

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governmental agency.

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the resulting statement is by this very fact rendered inadmissible and it becomes unnecessary to determine whether the statement was alao obtained in violation of the law of confessions.

However, the failure of the Manual to make any distinction between the hvo categories and the manner in which it purported to merge them into the one concept of "roluntariness" led some boards of review, in the early days of the Code, to believe that the absence of a warning in merely another factor to he considered in determining whether a statement was made voluntarily under the law of confessiom8 An outstanding example of the effect of this original interpretation of Article 31(b) is found in B ease where the Board cited a long line of Federal decisions holding that the mere fact that a suspect has not been warned of his rights under the fifth amendment does not render a confession inroluntaly under the law of confessions and concluded with the following statement:

". . . . This mle does not carry over mta our military system, for the Congrees in Its wisdom has seen Rt to dathe the soldier with B greater measYIe Of PlOteEtim than iii afforded the ordinary citizen."4Finally, in Cnited States v. Wilson 6 the Court of Military Appeals gave independent significance to Article 31 (b), stating that the Policy underlying the Congressional mandate is "80 overwhelmingly important in the scheme of military justice as to elevate it to the level of a 'creative and indwelling principle.' " e Although the re-quirement of a warning was treated apart from the law of eonfessions, there was no express recognition of the distinction. Then in United States v. Williams the Court made B Sm pronouncement that Article 31(b) extends the fifth amendment far beyond the privilege against self-incrimination and that the voluntarineas of the statement is immaterial for this purpose.6 Subsequently, it re-affirmed this Drineiple, stating that although the purpose of the requirement of a warning is to aroid impairment of the constihrtional guarantee against CompulSory self-incrimination,e the former is not

ARTICLE 31(b)Coextensive with the latter.10 Needless to say, the boards of review have given full effect to the changed views of the Court in this area."

AS we have seen, the drafters of the Manual and, for some time, the Court of Military Appeals apparently failed to appreciate the true sipnificance of Article 31 (b). However, it must be realbed that the problems posed by the statutory provision had to be decided largely without the aid of judicial precedent. The Court was entering upon virgin territory. There was no military precedent because Article of War 24, the predecessor of Article 31 of the Code, did not expressly exclude as evidence statements obtained without a warning, with the result that the principies which were developed there-under as to the effect of a failure to warn were treated as a part of the law of confessions. They were concerned solely with "volun-tarineas." There was little judicial precedent available, for in onlyone other American jurisdiction is there an absolute requirement of a warning similiar to that found in Article 31(b) ; and, in that jurisdiction, the statute differs from the Article to such an extent as to render most of its decisions thereon of little practical we.12 In this climate it was to be expected that there would be a certain amount of confusion as to the meaning and effect of the statute. However, in the opinion of this writer, the confusion is more apparent than real and results more from a failure to properly analyze the reported decisions than from faults in the language or reasoning of the judicial opinions.

Logical analysis of Article 31 (b) requires recognition that it comprehends four distinct factors posing four questions; viz., Who

does not apply.11 E.& CM 390175 Hill 21 CMR 501 (195s) (Coereim ete. erpreasly exclkdei in 08se ;nool& Art. 31(b)); CP 365872, Howard, 13 CMR 212 (1863) (Distinction between eoereion and warning emphasized)'

$;4b;;S!e;!~.r ;;c;;;Rw;;i;19f3) (Statement held net indun: Tex. Code Crh.. Proe. Ann. Art. 721 (Vernon 1941). The Statute is ret forth in part below with emphasis added to indieate the principal points whieh diatinpuish it from Artlcie 31(b) :

must do what to whom when? The Article is quoted below in such manner a4 to indicate these four factors and the precise question posed by each.who m"6t war"? "KOperson subject to this [code]

When is a warning required? may interrogate, or request any statement from,Whomust benamed? an Becused or a person suspeettd of an

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What warning is required? without Brat informing him of the nature of the aceustion and advising him that he doel not have to make any statement regarding the offenm of which he is aeNSed or IUS-pBeted and that any statement made by him mas be vezd 8.1 evidence against him in strial by court-martial."

In the following pages we shall consider each of these factors separately. I. WHO MUST WARN?

"No nerem aubjwt ta thia [ d e ] may interrogate.. , .I'

In order to properly isolate the factor with which we are con. cerned under this heading we will, in each case, assume that the subject is a person who must be warned and that the problem arises with reference to an occasion on which a warning would be required. It is only in this fashion that we can screen out other factors which otherwise might well confuse the issue.

For the meaning of the phrase "person subject to the code" we need look no further than Article 2 of that statute which sets forth twelve distinct categories of such individuals. If we could stop here there would be no problems other than to determine in a given case whether the interrogator fell within one of these groupings. Obviously, a person on active duty with the armed forces or a person accompanying or serving with the armed forces within the meaning of Article 2(11) of the Code is a person subject to the Code.'* It Isequally obvious that members of civilian law enforcement agencies, State or Federal. or foreim. are not:" nor is a civilian emdowe

ARTICLE 31(b)

of the Army within the United States.lS However, certain principles have developed whereby a determination that a person is or is not subject to the Code does not conclude the matter.

The Court of Vilitary Appeals has indicated that, under some circumstances, a person m t subject to the Code may be required to give a warning. In United States v. Grisham it held that French authorities were not bound by Article Sl(b) but was careful to point out that a contrary result would obtain if it appeared that the military investigators used the foreign authories as their agents for the purpose of obtaining a statement from an uninformed subject.'? A board of review had anticipated this result by holding that the failure to warn was fatal where the interrogator was a civilian employed for that purpose by military authorities. The board stated that when the investigator is acting 84 the agent of a person subject to the Code, the warning is required "as fully as though it [the statement] were obtained directly by the person subject to the Code for whom he was performing the inveatigation."

The Court has also held that a person subject to the Code is not, under all circumstances, required to give a warning to a suspect before interrogating him.18 The first case raising this issue was United States v. Creamer 20 which involved a situation...