LESSON

CONFESSIONS AND ADMISSIONS

OVERVIEW

LESSON DESCRIPTION:

In this lesson you will learn the law governing confessions and admissions. You will be able to properly advise a suspect of his rights and how to obtain a statement from him that will be admissible at a later court-martial.

TERMINAL LEARNING OBJECTIVE:

INTRODUCTION

In a criminal case, one must keep in mind the critical importance of the accused's own confession. There is a tendency to sometimes forget this, and to focus instead on the exclusive use of scientific means of criminal detection. Such tools as ballistics, fingerprints, pathology, photography, and serology are, of course, extremely important. A confession, however, presents the accused's own explanation of what he did, how he did it, when, and why.

PART A - CONFESSIONS AND ADMISSIONS

1.   A classic illustration of the importance of a confession is the assassination of President Kennedy on November 22, 1963. The crime, committed in daylight, occurred in the midst of hundreds of spectators, many of whom were police officers. Physical evidence was plentiful, in such forms as fingerprints, photographs, clothing fibers, ballistics, etc. The Warren Commission, in fact, compiled a 25-volume report dealing with the evidence relating to the crime. Still, more than 20 years later, we cannot state with any degree of certainty exactly what happened that day. The accused assassin was himself shot to death two days after the President's murder. Without a confession, then, history will forever speculate as to whether or not the crime was the act of a lone assassin (as opposed to the result of the conspiracy).

2.   A confession may provide something which physical evidence cannot: a motive. A motive is simply the accused's reason for the commission of a crime. Common examples are jealousy, financial gain, and simply hate. While crimes can occur without any apparent motive, it is easier for a trial counsel to obtain a conviction if some motive can be established. Otherwise, there appears to have been no reason for the accused to have committed the crime; he may, therefore, argue at trial that this shows his innocence.

3.   As opposed to a confession (which is a complete acknowledgement of guilt), an admission is simply where the accused admits some fact which is then used to connect him with the crime. He may, for example, deny committing the murder, but may admit that the knife that was used is his. He may deny committing the rape, but may admit that he was with the victim on the night in question.

4.   Both confessions and admissions are extremely important in terms of establishing the guilt of the perpetrator. Even if the accused denies everything in his statement (makes no confession or admission), his statement is still very important. It enables the trial counsel to discover just what the accused will testify to at trial. Stated differently, it "ties him down" to a story. This is extremely significant to a trial counsel who is preparing for trial. Without any statement of the accused, the trial counsel may not know until the actual trial just what the individual is going to say when he takes the stand.

5.   Because confessions and admissions are so important (as are any statements of the person accused of the crime), it is important to understand the applicable law. Unless the statement has been properly obtained, it will not be admissible at trial. This is the result of the exclusionary rule, which we will examine in detail later. For now, it is sufficient to merely mention that the illegally-obtained statement will be inadmissible at trial, along with any other evidence obtained as a result thereof (called derivative evidence).

6.   The person who questions the suspect (officer, NCO, or criminal investigator) must have the basic understanding of the applicable rules. This subcourse will provide that. It will examine not simply "the law," but will present actual cases (both federal and military). You will be able to learn from the successes and mistakes of those who came before you. Understand what they did when faced with the sort of factual situations that YOU will face in the field. Read what the appellate courts had to say, as our higher courts (including the U.S. Supreme Court) examined the conduct of the investigator, officer, or NCO involved in the case. When finished, you will be prepared to question a suspect and obtain a statement that will be admissible in evidence at a trial by court-martial.

PART B - THE ORIGIN OF THE PROCEDURAL PROTECTIONS

The Origin of the Procedural Protections. Before examining the specific rights of the accused, we shall take a moment and explain the basic origin of those procedural protections. "The prohibitions of Article 31 and the Fifth Amendment against coerced confessions are based upon the concept that involuntary statements must be excluded because of their inherent potential for unreliability." U.S. v. Lausin, 18 MJ 711 (ACMR, 1984).

1.   The Fifth Amendment to the U.S. Constitution simply states: "...nor shall (he) be compelled in any criminal case to be a witness against himself." Article 31, UCMJ, states: "No person subject to this Chapter may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him." Article 31b, UCMJ, more specifically states that "no person subject to this Chapter may interrogate, or request any statement from an accused or a person 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."

2.   Article 31b, then, requires that a suspect be advised of three things: (1) the nature of the accusation; (2) the right to remain silent; and (3) that any statement he makes may be used as evidence against him in a trial by court-martial. As you can see, the right to counsel is not, therefore, found in Article 31. Instead, the right to counsel at an interrogation was recognized by the U.S. Supreme Court in its decision in Miranda v. Arizona, 384 U.S. 436 16LEd2d694 86 SCt 1602 (1966). Miranda was adopted by the military in U.S. v. Tempia, 37 CMR 249 (1967). In Tempia the U.S. Court of Military Appeals ruled that Miranda "lays down concrete rules which are to govern all criminal interrogations by federal or state authorities, military or civilian, if resulting statements are to be used in trials commencing on or after June 13, 1966." The military, then, adopted the Miranda requirements as a constitutional requirement. U.S. v. Clark, 48 CMR 77, (CMA, 1973).

3.   We will return to the specific rights covered by both Article 31, UCMJ, and the right to counsel. For now, understand that the right to counsel is not contained in Article 31. It is, nonetheless, a basic right of the accused that must be both understood and observed.

PART C - THE MOTION TO SUPPRESS-- LITIGATING THE ISSUE AT TRIAL

The Motion to Suppress--Litigating the Issue at Trial. We will examine the exclusionary rule itself later. For now, understand that if a confession is unlawfully obtained, the accused may successfully move to have it excluded from court. In other words, he will try to have it suppressed, or kept out of the trial. If he is successful, this will obviously improve his chances of being found not guilty.

1.   At the court-martial, before the accused enters a plea (guilty or not guilty), the accused may raise any motions that he may have. This is done at the portion of the trial called the Article 39A Session. This is, again, the time for the raising of pretrial motions (Military Rules of Evidence 304(d)2). The law defines a statement as being involuntary "if it is obtained in violation of the self-incrimination privilege or due process clause of the Fifth Amendment to the Constitution of the United States, Article 31, or through the use of coercion, unlawful influence, or unlawful inducement" (MRE 314(c)3). Also, Article 31d, UCMJ, states that "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 trial by court-martial."

2.   Once the accused has made his motion to suppress, "the prosecutor has the burden of establishing the admissibility of the evidence" (MRE 304(d)5). The defense may present evidence and the accused may testify on the motion. The military judge must then find the statement to have been made voluntarily before it may be accepted into evidence. Frequently, what is involved is an oral confession. This is one that has not been reduced to writing. It is valid and admissible (the same as a written confession) and "may be proved by the testimony of anyone who heard the accused make it" (MRE 304(b)1). Consequently, whoever questioned the suspect will most likely be a witness at the court-martial. As a matter-of-fact, this person will quite likely be the only witness who can testify for the government as to how the statement was obtained. Indeed, the accused and the questioner may have been the only persons present when the statement was made. Unless the questioner can testify credibly that he followed the applicable rules, the confession will not be accepted into evidence. Unless you know the basics of what these rules are, then, the government's position at trial may be severely handicapped.

3.   If the military judge finds the confession to have been legally obtained and, therefore, admissible, he will then instruct the court members "to give such weight to the statement as it deserves under all the circumstances." The defense may still argue to the court members that the statement is unworthy of being believed (MRE 304(e)2). After the Article 39A Session is over, the witness may find himself testifying again as to the circumstances surrounding the taking of the statement. The U.S. Supreme Court held that even if a defendant was unsuccessful in moving to suppress his confession, he may still argue to the jury that it is unreliable. He has a constitutional right to present such evidence. In fact, his case "may stand or fall on his ability to convince the jury that the manner in which the confession was obtained casts doubt on its credibility." Crane v. Kentucky, 476US683, 90LEd2d 636, 106SCt 2142 (1986).

4.   It should be apparent that the issue of the admissibility/voluntariness of the statement is a critical issue at the court-martial. If those who question suspects are not familiar with the applicable legal rules, the result can be a disaster. The confession may be inadmissible, and the offender may escape conviction and punishment for his crimes. The errors of the criminal investigator, officer, or NCO, may wind up providing an unnecessary (and undeserved) windfall to the accused. Avoiding conviction, he may return to the community to commit more crimes. That community, of course, is our community. It is to the avoidance of such an unfortunate outcome that this subcourse is directed.

PART D - ARTICLE 31b:     THE NATURE OF THE ACCUSATION

Article 31b: The Nature of the Accusation. Article 31b, UCMJ, as we have seen, requires that a suspect be advised of three things. Notice of the right to remain silent and that any statement made may be used against him in a trial by court-martial are fairly straight-forward. Notice regarding the "nature of the accusation," however, has produced some confusion and litigation. It is important, therefore, to take a close look at just what this means.

1.   Prior to questioning, "all military suspects or accused persons must be given a proper warning of their rights in accordance with Article 31, UCMJ (AR 195-2, paragraph 3-18). The three warnings required by Article 31b are also stated at RCM 305c.

2.   In one case, an investigator apprehended the accused for AWOL, and also suspected him of stealing a car. The investigator, however, did not tell the accused that he suspected him of the theft, but simply said "that I was interested in his activities over a period of time from the 29th of October until the 31st, inasmuch as I was interested in what his activities were from the time he departed the base until he was apprehended." The investigator admitted that he knew the taking of a car was a "separate and distinct" offense from the AWOL, but said he felt that the general inquiry into the accused's behavior during the absence was sufficient advice regarding the larceny offense. On appeal, the court held that this advice was clearly insufficient. The investigator believed the accused had stolen the car and questioned him about it, but failed to advise him of the nature of the accusation. This had the effect of depriving the suspect "of any meaningful choice concerning whether to speak or remain silent." U.S. v. Reynolds, 37 CMR (CMA, 1966).

3.   The court explained that simply drawing the suspect's attention to a general period of time, and having him discuss all of his activities, is not enough. The purpose of the requirement "seems clearly to have been designed so to orient an accused or suspect as to allow intelligently to weigh the consequences of responding to an investigator's inquiries." It "is not necessary to spell out the details of the accused's alleged misconduct with technical nicety in order to adequately inform him of the nature of the charge being investigated... It suffices if the accused is made aware of the general nature of the allegations involved." Stated another way, the law does not expect a police officer to use the precision of an attorney in informing the suspect of the subject matter of the investigation. The requirement is only that the suspect be advised of the NATURE of the accusation, "not that it be spelled out with the particularity of a legally sufficient specification." It would, then, have been sufficient to have drawn the suspect's attention to the taking of the automobile, without reference to the technical terms "larceny" or "wrongful appropriation." The court concluded that "it is obvious that asking an accused what he has done over a three-day period does not inform him of the nature of the accusation which is being investigated."

4.   Remember, the purpose of this requirement "is to orient him about the accusation so he can intelligently refuse to answer any question concerning it." U.S. v. Johnson, 19 CMR 91 (CMA, 1955). The warning "must include the area of suspicion and sufficiently orient the accused toward the circumstances surrounding the event." U.S. v. Heulsman, 27 MJ 511 (ACMR 1988). In another case, the accused was suspected of the offense of assault with the intent to commit rape. The accused had abducted the victim in a vehicle, which he had wrongfully taken. The investigator advised the suspect that he was suspected of the assault offense, but did not mention the offense of wrongful appropriation of the vehicle. The court explained that "prior to the time the accused made his statement, the investigator did not know of the second offense." It, therefore, concluded: "It is not always possible to know all of the offenses which might be involved from a given state of facts, but it is necessary that one suspected of a crime know generally the subject of the inquiry. This puts him on notice of the purpose of the questioning... Here, without compulsion of any kind, he related his version of the assault and extended his statement to include the misappropriation. The knowledge of that offense was gained from the accused's statement, and the failure of the investigator to anticipate it and warn the accused is immaterial to the admission of the statement." U.S. v. O'Brien, 12 CMR 81 (CMA, 1953). Remember, "if the examiner is without knowledge or suspicion that a particular offense has been committed by the person to be questioned, he cannot provide the preliminary advice required by Article 31." U.S. v. Davis, 24 CMR 6 (CMA, 1957).

5.   U.S. v. Rice, 29 CMR 340 (CMA, 1960), involved a scheme in which a finance clerk deliberately overpaid another individual. The investigator advised the suspect that he was "investigating unauthorized payments of pay and allowances." The court held that the purpose of the advice "is to orient him to the transaction or incident in which he is allegedly involved," and that the accused here "knew the nature of the transaction" even though the investigator did not use the technical term "larceny."

6.   U.S. v. Perry, 46 CMR 636 (ACMR, 1972), the accused was suspected of detonating a claymore mine in the NCO billets. The suspect was told that he was suspected of the offense of '"aggravated assault," but not attempted murder. The investigator claimed that he honestly thought that aggravated assault was the proper charge. The accused, however, argued that he was not sufficiently advised of the nature of the accusation against him. The court ruled that the investigator may have "understated the potential gravity" of the offense, but that this did not violate Article 31. The reason was that the accused "knew precisely" what was being investigated-- the detonation of the mine in the billets. An investigator must not, however, deliberately and in bad faith understate the offense under investigation, as this could result in suppression of the confession.

7.   This is similar to what happened in U.S. v. Davis, 24 CMR 6 (CMA, 1957). The accused was suspected of desertion, but the investigator referred to his activities "from the time he went AWOL." The court explained that the advice regarding the nature of the accusation "need not be spelled out with the particularity of a legally sufficient specification; it is enough if, from what is said and done, that the accused knows the general nature of the charge." Here, then, "the accused was clearly oriented" to the desertion offense. The standard is that the questioner's advice "should illuminate the nature of the suspected offense with such certainty as the information known to the agent permits." Again, this only requires that the suspect be "oriented by his interrogator as to the incident under inquiry." U.S. v. Nitschke, 31 CMR 75 (CMA, 1961).

8.   Contrast the above with U.S. v. Johnson, 43 CMR 160 (CMA, 1971). There, the accused left his unit in South Vietnam and proceeded into Laos. He was charged with attempting to contact the Viet Cong for the purpose of discussing the subject of their moral responsibilities to God and their fellow men. When questioned, however, the investigator only advised him that he was suspected of desertion, and not of intentionally attempting to hold intercourse with the enemy under Article 104, UCMJ. The court held that the investigator knew of the facts and did, in fact, suspect the accused of this offense. It also concluded that when someone is suspected of attempted intercourse with the enemy, warning him that he is suspected of desertion is not sufficient. The investigator was not required to know the precise article of the UCMJ that was involved. Again, it is sufficient "if the accused is made aware of the general nature of the allegations involved." In this case, it would have been sufficient to have drawn the suspect's attention to contacting the enemy, without reference to the technical term of "holding intercourse with the enemy."

9.   As you can see, an accused is frequently suspected of more than one offense. Such was the case in U.S. v. Quintana, 5 MJ 484 (CMA, 1978). The accused was informed that he was suspected of the offense of larceny of a ship's store funds. The investigator, however, also suspected the accused of having earlier committed the offense of wrongful appropriation from the same funds. The court held, however, that the advice "clearly oriented him to the fact that misuse of the ship's store fund was the object of the investigation. The appellant's disclosure of incidents of misuse over more than that mentioned by the agent was within the frame of reference."

10.   Contrast the above with U.S. v. Willeford, 5 MJ 634 (AFCMR, 1978). The accused was suspected of rape. This was held to be sufficient to also orient him to the "closely related" offenses of unlawful entry and indecent acts with the victim. The agent did not, however, advise him that he was also suspected of housebreaking and indecent exposure involving a second, unrelated, victim. The court, therefore, concluded that the advice concerning the first incident was not sufficient to orient the accused to the second incident. Before questioning the accused regarding this second incident, then, the agent should have advised him that he was suspected of the additional offenses.

11.   Similarly, in U.S. v. Stamats, 45 CMR 765 (MCMR, 1971), the accused was advised that he was suspected of the offense of murder. The accused was also tried, however, for felony murder and robbery. The court concluded that advice regarding the offense of murder was sufficient. The murder had occurred during the course of the robbery; thus, these were not "separate transactions." Instead, they formed "one continuous sequence." Remember, the requirement is that the advice given "must, at the very least, serve to communicate in general terms the area of suspicion." U.S. v. Gilliard, 42 CMR 1030 (AFCMR, 1970).

12.   The requirement to advise a suspect of the nature of the accusation against him is found in Article 31, UCMJ. This was not a requirement announced in the Miranda decision of the U.S. Supreme Court. In Colorado v. Spring, 479US564, 93LEd2d 954, 107 SCt 851 (1987), the Supreme Court ruled Miranda itself does not require that a suspect be informed of the offenses under investigation. In the context of a civilian investigation, then, this decision is applicable. It does not mean, however, that Article 31 has in anyway been overruled. The requirement found in Article 31 is not affected by the Supreme Court decision just cited, since that decision was not dealing with Article 31's requirement at all. This is simply a situation where the soldier is given a procedural protection beyond what is minimally required by the Constitution. Persons subject to the UCMJ (and those acting as their agents) must continue to follow the requirement found in Article 31.

PART E - WHO IS A SUSPECT?

Who is a Suspect? The individual is to be warned of his/her rights when the questioner suspects him/her of an offense. The courts have held that "an incriminating statement made in response to a question not asked for the purposes of crime detection or with intent to aid such an investigation, directed to one who is neither accused nor suspected of an offense, is not rendered inadmissible by the lack of prior warning." U.S. v. Hopkins, 22 CMR 309 (CMA, 1957). At the same time, however, "once military law enforcement authorities engaged in an official investigation of crime have identified a suspect from whom they desire any sort of oral or written statement touching the subject matter of the investigation, they must, before proceeding with the investigation, provide the warning demanded by Article 31--if his statement is to be usable against him." U.S. v. Taylor, 17 CMR 178 (CMA, 1954).

1.   An investigator, then, need not advise a person of his rights when that person is only a "material witness," and not a suspect. U.S. v. Schafer, 32 CMR 83 (CMA, 1962). The investigator, however, must be able to testify that he honestly and reasonably did not suspect the accused. The court will disbelieve testimony that it finds "incredible." U.S. v. Doyle, 26 CMR 82 (CMA, 1958). The mere fact that an investigator says he did not suspect the accused is not conclusive; the court will closely examine the facts.

2.   In one case, the accused and the victim were posted as security guards at an Air Force installation's gate. At 1245 hours, the accused telephoned headquarters, stated that he had shot the other guard, and asked for an ambulance. Sergeant Holt was sent to the scene to investigate. He was not a criminal investigator, but was acting as a "flight commander." When he arrived at the gate, he found the accused "walking up and down on the south side of the gate." The victim was laying on the ground. Sergeant Holt asked the accused what had happened and the response was: "I don't know what happened, Sarge. I told him I was going to shoot him. I pulled my weapon and shot him."

3.   Although Sergeant Holt testified that he did not suspect the accused of anything, the court noted that "there are factors which could fairly lead" to another conclusion. As an example, he was "on notice that the accused was responsible for shooting his fellow guard." Under these facts, the conviction was reversed on appeal. U.S. v. Gorke, 31 CMR 210 (CMA, 1962).

4.   In a similar case, a military police sergeant, while on shore patrol received notice of a shooting in the 503d Battalion area. He went to that location and observed a group of soldiers standing around a fire. Another MP at the scene "pointed out appellants as the persons identified to him by a group of Koreans as the men who had shot their countryman." The sergeant approached the group and, looking directly at these men, asked who had done the shooting. They then admitted that they had done it. The court found Article 31 to be "plain and unequivocal," and held the individuals to have been suspects. The failure to advise them of their Article 31 rights, then, was error. U.S. v. Wilson, 8 CMR (CMA, 1953).

5.   Contrast the above with U.S. v. Henry, 44 CMR 152 (CMA, 1971). There, CPT Fleming was the acting executive officer of the 4th Battalion, 21st Infantry, on duty in South Vietnam. On the night in question, at approximately 2130 hours, shots were heard. CPT Fleming and another officer thought the shots had come from "interdiction fire from their perimeter." Since the shots sounded "a little close," they decided to investigate. At this point, they heard other shots. Thinking these were "incoming," they grabbed their weapons and "started out the back door to see what was going on." As CPT Fleming came out of his hut, someone told him that "someone had been shot." CPT Fleming then realized that the shots had come from within the compound.

6.   CPT Fleming saw a group of 8 to 10 persons gathered outside the rear of a hootch. As he approached, CPT Fleming observed that there were several conversations going on. From "all sorts of comments," he determined that "it was evidence that someone had done some shooting and one of the drivers had been hit." He testified that he had no idea of just how the incident occurred, and that he wanted to find out who was hurt, where any victims were, and who had done the shooting. Speaking to the group, he asked "who shot who?" The accused was in the group, about 10 feet from CPT Fleming and "on the far side." The court explained that "information available to the investigator may so clearly identify the conduct as criminal and a person as the wrongdoer as to require threshold advice to the individual regarding his right to remain silent; in other instances, the investigator may have no reason to anticipate or suspect that a person from whom he seeks information is implicated in a crime. Thus, the conclusion as to criminality of suspicion in a particular case depends on the totality of the surrounding circumstances."

7.   The court distinguished the facts in the Wilson case (discussed above). There, the MP had received a report that the individuals "had done the shooting." His question was aimed directly at the suspects. Here, however, CPT Fleming "did not suspect the accused of shooting and did not expect him to reply to his question." In fact, he did not suspect any member of the group he directed his question to; he had, in effect, "no suspect at all." The court held that "no particular person was suspected by Fleming at this point. Since Fleming suspected none of the group of being involved in the shooting and had no information that reasonably should have put him on notice, he did not need to give preliminary advice as to the right to remain silent."

8.   In U.S. v. Collier, 49 CMR 723 (AFCMR, 1975), at approximately 0930 hours, a black male entered an Air Force base hospital and opened fire on assigned personnel within. A witness described the assailant and the fact that he had left "in a blue and white automobile driven by a black female companion." When the accused was questioned by the OSI, the agents knew the following: (1) there had been a shooting at the hospital; (2) the accused had been at the hospital shortly before the shooting. He had entered the emergency room entrance with a black female, after getting out from a blue and white automobile. He was then paged, but could not be located. His records had been removed from the files indicating he was to be seen; (3) his general description fit that of the assailant; (4) the assailant left the hospital in a blue and white automobile; (5) the accused owned a blue and white automobile which the eyewitness said "looked like the one he had seen;" and (6) of all the persons who visited the hospital that morning, the accused was the only one with a vehicle known to fit the description.

9.   Faced with these facts, the court explained that whether or not someone is a suspect depends "on the facts known to the investigator... If the interviewer, based upon consideration of all known surrounding circumstances, has reasonable grounds to suspect that the person being interrogated has committed an offense, a proper threshold warning must be given." Here, the court concluded that the agent "had reasonable cause to believe the accused had committed the crime under investigation." The agent's testimony to the contrary (that he did not suspect the accused, and that the accused was a mere witness) was not convincing, since "the surrounding circumstances simply do not support this." Such testimony was rejected "as unwarranted by the known circumstances and plain common sense."

10.   In another case, an MP had the individual placed under apprehension. Under these facts, the court held that "he must have had probable cause to believe" that the person had committed the crime. U.S. v. Wagner, 39 CMR 216 (CMA, 1969). Remember, the issue "depends, in each case, upon the facts known to the investigator and the totality of the circumstances. If there are reasonable grounds to suspect that the person being questioned has committed an offense, the warning must be given." The testimony of the questioner that he did not suspect the individual is not conclusive. U.S. v. Tibbetts, 1 MJ 1024 (NCMR, 1976). If the investigator's testimony that he did NOT suspect the individual is found to be unreasonable, the court will conclude that he SHOULD have suspected the individual and that he was, therefore, required to advise him of his rights. U.S. v. Anglin, 40 CMR 232 (CMA, 1969).

11.   A final example of this rule is U.S. v. Lacy, 16 MJ 777 (ACMR, 1983). A CID agent was told by medical personnel at the Nuernberg Army Hospital that the accused's 11-week-old daughter had died of head injuries which she had sustained earlier that day. The agent was told that the father (the accused) had brought the child in for treatment, saying she had fallen "from a couch onto a hard floor after he had left her unattended." The agent concluded that "we might have something more than an accidental death." CID subsequently learned that the child's injuries "included scratches and bruises of the body, a bruise over one eye and three bruises of the skull." A pathologist told the investigator of a medical study of 300 infants who had fallen from a height of three feet or less. None had even needed hospitalization. CID then requested that necessary action be taken to preserve the body, and took action to seize the couch. The accused was subsequently questioned without having been informed of his rights.

12.   The court, faced with these facts, held that "there was more than ample evidence" to focus the agent's attention on the accused. The facts "should have compelled the conclusion that accidental death was improbable." The agent's actions to preserve the body and seize the couch "reflect his recognition of appellant as a suspect. Therefore, he should have given appellant the required warning." This is simply another example of a situation where the interrogator "believed or reasonably should have believed that the one interrogated committed an offense." U.S. v. Morris, 13 MJ 297 (CMA, 1982).

13.   It is, of course, possible for an individual not to be a suspect at the start of an interview. Something he says or does during the interview may change his status. He may contradict himself, make a proverbial "slip of the tongue," etc. If the facts make the individual a suspect at some point during the interview, then Article 31 is triggered and the interviewer must stop and advise the person of his rights. U.S. v. Rice, 3 MJ 1094 (NCMR, 1977). As we have seen, the one doing the questioning cannot blindly ignore the facts and simply claim that he did not suspect the individual of anything.

PART F- THE MEANING OF "INTERROGATION"

The Meaning of "Interrogation." Article 31b, UCMJ, states that "no one subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense... without first advising the individual of his rights." The term "interrogate" normally involves questions put to the suspect.

Military Rule of Evidence 305 states, "'Interrogation' includes any formal or informal questioning in which an incriminating response is either sought or is a reasonable consequence of such questioning." Further, this definition is "broad enough" to include conversations or actions which could reasonably be expected to elicit a response which would be considered the equivalent of formal questioning.

1.   An example of a conversation reasonably expected to elicit a response arose in Brewer v. Williams, 430 U.S. 387, 51 L.Ed. 2d 424, 97 S.Ct. 1232 (1977), a U.S. Supreme Court decision. A ten year old girl disappeared at the Des Moines, Iowa, YMCA while watching her brother in a wrestling tournament on Christmas Eve. A teenaged witness later told police that Mr. Williams, a mental patient and a resident of the YMCA, had taken a bundle wrapped in a blanket from the YMCA about the time the girl disappeared. When Mr. Williams placed this bundle in the back seat of his car, the witness noticed two white skinny legs protruding from the blanket. Mr. Williams immediately became the subject of a police manhunt. The day after Christmas, after consulting with a lawyer, he agreed to turn himself in to police. Two Des Moines detectives were dispatched about 160 miles away to pick up Mr. Williams. At that time the girl's body had not been discovered. With Mr. Williams in the detectives' vehicle, one of the detectives who knew him to be a religious man said to him, "Reverend,

2.   The suspect thought about it for awhile, and then directed the police to the body. On appeal, he argued that he had been interrogated in violation of his rights. The U.S. Supreme Court held that "there can be no serious doubt... that Detective Leaming deliberately set out to elicit information from Williams just as surely as--and perhaps more effectively--than if he had formally interrogated him... he purposely sought... to obtain as much incriminating information as possible." The detective, then, had used psychology "with the specific intent to elicit incriminating statements." The conviction was reversed.

3.   A similar issue arose in Rhode Island v. Innis, 64 L.Ed.2d 297 (1980). There, a suspect was arrested for the shotgun slaying of a taxicab driver. The suspect was placed in a police vehicle and was driven back to headquarters in the company of three police officers. While en route, one of the officers said to another officer:

4.   The other officer agreed "that it was a safety factor, and that we should, you know, continue to search for the weapon and try to find it." The suspect then interrupted the officers and told them to turn the car around. He stated that he "wanted to get the gun out of the way because of the kids in the area of the school." On appeal, the issue was whether or not the suspect had been interrogated. The Supreme Court explained that Miranda had referred to "questioning" of the suspect. The term "interrogation," however, extended to more than that. It included "techniques of persuasion, no less than express questioning." The court then concluded that the term extended to "either express questioning or its functional equivalent." In other words, it covers not merely "express questioning, but also... any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect... A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation."

5.   The court noted, however, that it was not holding that all statements obtained by the police after a person has been taken into custody are automatically to be considered the product of interrogation. It explained that "since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." In such cases, the intent of the police officers is important, "for it may well have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response. In particular, where a police practice is designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect.

6.   Under the facts presented, the court held that there had been no interrogation. It could not be said that the two officers should have known that their brief conversation was reasonably likely to elicit an incriminating response from the suspect. Their remarks were not designed to provoke a response from the suspect, and there was no reason for them to have known that their "few offhand remarks" would have produced any such response. The issue, then, is whether or not the suspect's response was "the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response." Here, the testimony of the police officers was critical in convincing the court that they acted in good faith, and hadn't intended to induce the suspect to make a statement.

7. Another example of this problem is People v. Ferro, 472 NE2d 13 (NY, 1984). The defendant had been arrested for the murder of a woman during the course of a robbery in which some furs were stolen from her home. The defendant was in a cell in the police station. A detective left the police station and returned with the stolen furs, which he then stacked in front of the cell, a foot away from the suspect. The officer said nothing, but simply stared at the suspect who, after a few minutes, confessed. On appeal, the court held that the detective should have known that his actions were "reasonably likely to elicit from the defendant an incriminating response." In fact, where "the only possible object of the police action in revealing evidence to a defendant is to elicit a statement from him, it does no violence to logic to conclude that the police should have known that it would do so." In other words, under these facts, it was not only "reasonably likely" to elicit an incriminating response; it was DESIGNED to do so.

8.   The issue went before the U.S. Supreme Court again in Arizona v. Mauro, 481US 520, 95LEd2d 458, 107SCt 1931 (1987). The suspect had been arrested for the murder of his male child. At the police station, he was questioned by the police. When he said he wanted a lawyer, the questioning was immediately stopped. Meanwhile, another detective was questioning the suspect's wife, and she said that she wanted to speak with her husband. The detective was reluctant to allow her to do so, but she insisted on it. The detective checked with his supervisor, who told him to go ahead and allow the meeting if the wife really wanted it (which she did). The detective, however, was told not to leave the husband alone with his wife. The detective then told both the suspect and his wife that they could speak together, but only if a police officer was present in the room. They agreed to this, and the meeting took place. Statements that the suspect made were later introduced against him at trial, as the government tried to show that he was sane at the time he committed the crime. The defendant, on the other hand, argued that he had been illegally interrogated by the police in violation of Miranda, and moved to suppress all of his statements.

9.   The court held that Mauro had not been interrogated. The detective who was present in the room asked the suspect no questions. Also, there was no evidence that the decision to allow the suspect's wife to visit him was a psychological ploy that was the functional equivalent of interrogation. Clearly, the police did not send the wife in for the purpose of eliciting incriminating statements from her husband. On the contrary, the police tried to discourage her from even talking to her husband, but finally "yielded to her insistent demands." The court concluded that the police "need not adopt inflexible rules barring suspects from speaking with their spouses, nor must they ignore legitimate security concerns by allowing spouses to meet in private. In short, the officers in this case acted reasonably and lawfully by allowing Mrs. Mauro to speak with her husband."

10.   In U.S. v. Peyton, 10 MJ 387 (CMA, 1981), the accused had been apprehended by a military police investigator. When advised of his rights, the accused said that he wanted a lawyer, so the interview was immediately terminated. The investigator, however, allowed the suspect to remain in his office while he completed CID Form 44, "which is a personal data card that the CID requires an agent or investigator to complete after interviewing a suspect." The investigator simply filled out the form, which did not call for the suspect to answer any questions or supply any information. As the investigator was completing the form, however, the suspect started to converse with him regarding "how serious of an incident this was," and made incriminating statements.

11.   The court held that there was no evidence that the government had deliberately and designedly set out to elicit incriminating information from the suspect. The completion of the personal data card "was only a circumstance that is normally attendant to arrest and custody... There is no evidence that this procedure, or any other words or actions on the part of the investigators, persuaded (the suspect) to confess."

12.   Compare these facts with U.S. v. Muldoon, 10 MJ 254 (CMA, 1981). When questioned by the CID, the accused said he wanted a lawyer. The interview was then stopped, and the suspect was placed in a detention cell. The CID then interviewed some other suspects, one of whom confessed and implicated the accused. Armed with this information, the CID agents went to the accused and told him that his friend had confessed and implicated him. Following this revelation, the accused himself confessed. The investigators candidly admitted that "this was designed to see if he would talk." They admitted that it was "part of a technique to use in any interview in telling them of the uselessness of their situation. In other words, that they had been caught."

13.   The court agreed with this assessment, and held that the investigators had used a "time-honored technique to elicit a statement--namely, informing the suspect that he had been implicated by someone else. Here, the agents candidly admitted that (it) was one of their interrogation techniques." The conviction was reversed. Indeed, "when conversation is designed to elicit a response from a suspect, it is interrogation, regardless of the subtlety of the approach." U.S. v. Borodzik, 44 CMR 149 (CMA, 1971).

14.   In another case, when the suspect said that he did not want to be questioned, the CID agent returned him to his cell. About 9 hours later, the agent returned, and told the suspect that another participant in the robbery had given the police a statement that implicated the suspect. Again, such police conduct was deemed to be a form of interrogation. U.S. v. Hill, 5 MJ 114 (CMA, 1978).

15.   An interesting application of this rule is U.S. v. Dowell, 10 MJ 36 (CMA, 1980). There, the accused was in pretrial confinement, and was visited by his commander. The commander told the accused of an additional charge against him. The court concluded that it was reasonably foreseeable that this would provoke a response from the subject. The actions of the commander, then, were the "functional equivalent" of interrogation. As the court explained, it was "human nature... that one who has been notified of serious charges against him will feel a need to say something in response to those charges. The foreseeability of such a reaction is all the greater when the accused is in confinement and the charges against him are being presented to him by his commander." The court then concluded:

16.   In U.S. v. Holliday, 24 MJ 686 (ACMR, 1987), the accused said he wanted a lawyer when the CID agent advised him of his rights. Following this, the agent did not ask him any further questions, but did require the suspect to provide a handwriting exemplar. The court explained that since the suspect had invoked his rights, it would have been improper to have continued to interrogate him. The issue, however, was whether or not the suspect had, in fact, been subjected to further interrogation. The court held that the compelled production of a handwriting sample "does not violate the Fifth Amendment." The agent asked the suspect no further questions, and the situation "was not a subterfuge to place the appellant in a coercive interrogation environment that was likely to undermine the appellant's previous invocation of his rights. It was not the "functional equivalent" of interrogation. The same is true for asking a suspect for his consent to a search. U.S. v. Roa, 24 MJ 297 (CMA, 1987).

17.   In U.S. v. Byers, 26 MJ 132 (CMA 1988), a CID agent advised a suspect of his rights. Before doing so, however, he did the following:

18.   The court held that a 20 to 40 minute "lecture" constituted the equivalent of interrogation. The rights advisement "should be given when an interrogation begins--not at its midpoint."

PART G - WHAT IS A "STATEMENT"?

What is a "Statement"? Article 31b, UCMJ, you will recall, states that no person subject to this chapter (UCMJ) "may interrogate or request any statement from an accused or a person suspected of an offense" without first informing him of his rights. We have already examined the definitions of "suspect" and "interrogate." The next question concerns the definition of what a "statement" is.

1.   Physical acts. In Holt v. U.S., 218 U.S. 1021 (1910), the accused was made to try on a blouse. A witness then testified that it fit the accused. The Supreme Court held that the Fifth Amendment privilege against compelled self-incrimination "is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material." This situation, then, was compared to having a jury look at a prisoner and compare his physical features with those in a photograph. There was, then, no violation of the Fifth Amendment.

2.   Line-ups. In U.S. v. Wade, 18 L.Ed.2d 1149 (1967), the Supreme Court held that the appearance of a suspect in a line-up did not violate his privilege against self-incrimination. The privilege "protects an accused only from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature." The court explained that "compelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance. It is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have." As for speaking words in the line-up, the court ruled:

3.   Handwriting. In Gilbert v. California, 388 US 263, L.Ed.2d 1178 7SCt 1951 (1967), an accused was arrested for a series of robberies in which the robber used a handwritten note demanding money. The Supreme Court Ruled:

In U.S. v. Lloyd, 10 MJ 172 (CMA, 1981), the accused was suspected of having committed ration control violations by having purchased more goods than he was authorized to buy. As part of the investigation, an MPI investigator had the suspect produce his identification card, so that the signature could be compared with that used in connection with the various purchases of controlled merchandise. The court held that "handwriting and voice exemplars are not protected by the privilege against self-incrimination." The identification card, of course, was being obtained "for use as a handwriting exemplar." Consequently, "there is no reason to require an Article 31 warning before requesting a suspect to give a handwriting sample or, as here, to produced a document containing his signature or handwriting to be used for comparison purposes." The same result followed in U.S. v. Holliday, 24 MJ 686 (ACMR, 1987), in which the court held that "the compelled productions of a handwriting exemplar, even in an incriminating style uncharacteristic of the accused, does not violate the Fifth Amendment."

4.   Body fluids. Schmerber v. California, 38US757, 16 L.Ed.2d 908, 86SCt 1826 (1966), involved a suspect who was under arrest for driving under the influence of intoxicating liquor. While at the hospital for treatment of injuries which he had sustained, a blood sample was withdrawn by a physician. The court ruled that the Fifth Amendment privilege "reaches an accused's communications." It is "a bar against compelling communications or testimony, but that compulsion which makes a suspect or accused the source of real or physical evidence does not violate it." Under the facts of this case, then, "not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or the chemical analysis. Petitioner's testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone. Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds."

The military courts dealt with this same issue in U.S. v Armstrong, 9 MJ 374 (CMA, 1980). Again, the issue was whether or not it was "testimonial compulsion." Again, "words or conduct which lack testimonial characteristics are not protected by the Fifth Amendment." The court explained that the terms "interrogate" and "statement" in Article 31b "do not suggest that Congress meant to require that a warning be given before the investigator obtained from a suspect evidence which would not constitute a communication by that suspect." The court held that Article 31b covered the same matter as did the Fifth Amendment: testimonial communications and not body fluids."

5.   Voice samples. In U.S. v. Chandler, 17 MJ 678 (ACMR, 1983), the court explained that "words or conduct which lack testimonial characteristics are not protected by the privilege against self-incrimination." A compelled voice sample does not, then involve Article 31, "because this evidence is not testimonial or communicative in nature." This "is not a statement... but is a physical act, similar in nature to appearing in a line-up or submitting to fingerprinting." The suspect is simply "exhibiting a physical characteristic." Such action "does not violate the privilege against self-incrimination." U.S. v. Akgun, 19 MJ 770 (ACMR, 1984).

6.   Consent to search. Asking a suspect for his consent to a search also does not involve a "statement" within the coverage of Article 31. U.S. v. Thompson, 12 MJ 993 (AFCMR, 1982). Consequently, it does not require the giving of such warnings. U.S. v. Roa, 20 MJ 867 (AFCMR, 1985), Aff'd 24 MJ 297 (CMA, 1987).

7.   Requests for identification. Article 31b applies to a request for "any statement regarding the offense of which he is accused or suspected." As a result, a "statement of a person's identity is not an element of a crime; nor does it tend to prove a crime." U.S. v. Davenport, 9 MJ 364 (CMA, 1980). One's identity, then, "is neutral." U.S. v. Lloyd, 10 MJ 172 (CMA, 1981). Requiring one to produce an identification card "does not require advice and warning in accordance with Article 31." U.S. v. Thomas, 10 MJ 687 (ACMR, 1981).

8.   Verbal acts. One who is conducting a lawful search is not required to advise a suspect of his Article 31 rights. A search incident to a lawful apprehension is not a request for a "statement." U.S. v. Culbert, 29 CMR 88 (CMA, 1960). In one case, the accused's superior suspected him of possessing marijuana. He said to the accused, "I think that you know what I want, give it to me." The accused then reached into his left pocket and produced a package of marijuana cigarettes. The court held that the accused's conduct in producing the drugs was the equivalent of a "statement" within the meaning of Article 31. U.S. v. Corson, 39 CMR 34 (CMA, 1968). In other words, an accused may lawfully be searched as part of a valid apprehension. This, of course, is called the "search incident to apprehension." In the Corson case, however, something more was involved. The accused was being asked to perform a discretionary act that is regarded as the equivalent as a statement; i.e., a "verbal act." U.S. v. Rehm, 42 CMR 161 (CMA, 1970). A good way to think of this is as follows: Unless the accused is under apprehension and is being ordered to empty his pockets (as part of a search incident to the apprehension), asking him to turn over evidence against himself involves a request for a "verbal act." By turning over the evidence, the accused is "admitting" that he does, in fact, have it. This is why the verbal act is regarded as the equivalent of a "statement."

Throughout the area of Article 31 warnings, remember that the focus is on testimonial communication. In one case, the accused was a suspect in a robbery that involved a fight. When the MP apprehended the suspect, the MP asked him about some bloodstains on his coat. The government argued that Article 31 warnings were not necessary, as this was not a request for a "statement." The court disagreed, and held that article warnings are not needed in the cases involving such things as requests for handwriting or voice exemplars. Those, however, are cases "where the content or meaning of the words spoken or written was irrelevant. Only the physical characteristics of the words--how they are said and not what was said--were material." Asking a suspect about the blood on his clothes was not considered to be part of the routine booking process. Under these facts, Article 31 warnings were necessary. The court explained that it would have been different if the suspect had been bleeding and if he had been asked how he got hurt in order for the MP to determine his physical condition. That, however, is not what happened. U.S. v. Williams, 23 MJ 362 (CMA, 1987).

PART H - THE CONCEPT OF "OFFICIAL" QUESTIONING

The Concept of "Official" Questioning. By its language, Article 31 applies to persons "subject to this chapter," who interrogate or request a statement from the accused. In order for the protections of Article 31 to apply, we must have three things: (1) the individual who is questioned must be a suspect; (2) there must be an interrogation or a request for a "statement;" and (3) the questioner must be acting in an official capacity. The first two elements have already been examined.

1.   Not all questioning is defined as "official." Interrogation by CID or MPI agents would clearly qualify as "official," but so too would the questioning of a suspect by his superior officers. U.S. v. Souder, 28 CMR (CMA, 1959). It also includes "a person acting as a knowing agent of a military unit or of a person subject to the code" (MRE 305(b)1). In U.S. v. Quillen, 27 MJ 312 (CMA, 1988), the court held that an AAFES store detective was acting in an official capacity.

2.   FBI agents, for example are not subject to Article 31 or the UCMJ. The FBI is an independent federal agency, and the military does not directly or indirectly control its investigative efforts. Absent some subterfuge, or attempt to circumvent the law, FBI agents are not considered to be under the coverage of Article 31. U.S. v. Holder, 28 CMR 14 (CMA, 1959). This is also generally true for civilian police unless they are acting as our agents. For such an agency situation to exist, however, the court must find that the civilian police are acting "as an instrumentality of the military." This is not, of course, generally the case. In other words, if the civilian police are acting at the military's direction, this will trigger Article 31. U.S. v. Aau, 30 CMR 332 (CMA, 1961). Civilian police, of course, are covered by the requirements of the Miranda decision. This may require them to give the suspect certain warnings (based on Miranda, of course, and not Article 31), if the subject is in "custody." We will return to the subject of Miranda and the issue of "custody" shortly.

3.   In order to constitute "official" questioning, the suspect must perceive the encounter to be "an official interrogation," which means that it is something "other than a business meeting." U.S. v. Wiggins, 13 MJ 811 (AFCMR, 1982). As an example, questioning by an NCO is generally going to be regarded as "motivated solely by personal considerations." U.S. v. Bartee, 50 CMR 51 (NCMR, 1974). Article 31 warnings, then, are only required "during the course of an investigation being conducted with some color of officiality." U.S. v. Trojanowski, 17 CMR 306 (CMA, 1954). The warnings are aimed at "the effect of superior rank or official position," which create pressure upon the suspect to confess. Such a situation would not apply where the accused is questioned by a fellow prisoner. U.S. v. Gibson, 14 CMR 164 (CMA, 1954).

4.   In one case, the victim of a larceny confronted the accused. Since the victim was accompanied by a CID agent, however, this made the questioning "official," so the Article 31 warnings were necessary. U.S. v. Josey, 14 CMR 185 (CMA, 1954). In U.S. v. Woods, 47 CMR 125 (CMA, 1973), a charge of quarters (CQ) questioned a suspect regarding drug offenses. The court explained that Article 31 "does not require threshold advice in all instances where one member of the Armed Forces questions another about a crime which he suspects or knows the other has committed... The ultimate inquiry... is whether the individual, in line of duty, is acting on behalf of the service or is motivated solely by personal considerations when he seeks to question one whom he suspects of an offense." Here the CQ was acting "in discharge of his duties as CQ" and was "directly engaged in performance of the responsibilities of a command CQ during a regular tour of duty." He was, then, "the commander's representative," and Article 31 warnings were required. In one case, even though the MP who questioned the suspect said he was a personal friend, his questioning was still found to be "official." The issue was whether or not he acted as an MP on behalf of the Army; the court said that he did. U.S. v. Beck, 34 CMR 305 (CMA, 1965).

5.   In U.S. v. Duga, 10 MJ 206 (CMA, 1981), an Air Force security policeman had known the accused "for approximately a year and a half, and the two of them had lived and consorted in the same military dormitory and gone out together during the evenings." The accused was a former security policeman. After the accused had been questioned by the OSI (Office of Special Investigations) agents, he encountered his friend, Airman Byers, an Air Force security police officer. Airman Byers said that "he was curious about rumors he had heard" and he asked the accused "what he was up to." It was "a long night" and Byers said that "it was kind of nice to have someone to talk to." The accused responded that "he was looking for a place to hide his van because the OSI was looking for it, and that he still had something in it.'" Byers then asked him "what was the deal that was going on back when he was on leave?" The accused answered that he had been caught with a canoe and chain saw that had been stolen from the base. Byers later went to the OSI and reported what the accused had said to him.

6.   At trial, Byers denied that he questioned the accused while acting in an official capacity, and said that the conversation "was only more or less buddy-to-buddy talk." He said that OSI had not directed him to talk to the accused, and said that his purpose was not to get information. Instead, he said he was speaking "more or less like a friend to a friend... just out of my own curiosity." He said he was not an OSI informant, but was acting in a personal capacity, prompted simply by his own curiosity.

7.   On appeal, the court had to decide whether the questioning was official. The purpose of Article 31, it explained, was to counter "the effect of superior rank or official position upon one subject to military law." Since such pressure may make the "asking of a question... the equivalent of a command," Article 31 warnings are "a precautionary measure" to deal with the coercion that is inherent in military discipline and superiority. The protection, then, "applies only to situations in which, because of military rank, duty, or other similar relationship, there might be subtle pressure on a suspect to respond to an inquiry." Accordingly, in such cases, "it is necessary to determine whether (1) a questioner subject to the code was acting in an official capacity in his inquiry or only had a personal motivation; and (2) whether the person questioned perceived that the inquiry involved more than a casual conversation." As an example, if a fellow prisoner were to ask "what are you in for?" Article 31 warnings would not be necessary.

8.   In this case, the court decided that "the questioning was not done in an official capacity...Byers was not acting on behalf of the Air Force--either as a security policeman or as an agent of the OSI...the questioning by Byers was solely motivated by his own personal curiosity and was entirely unconnected with his previous contact with the OSI." The OSI did not direct nor advise him to question the accused. Also, "the appellant could not possibly have perceived his interrogation as being official in nature. The evidence portrays a casual conversation between comrades...The appellant could not have envisioned that Byers was acting in an official capacity. Moreover, there was no subtle coercion of any sort which could have impelled the appellant to answer Byer's questions."

9.   This is similar to what happened in U.S. v. Kirby, 8 MJ 8 (CMA, 1979). There, the OSI had received information that property missing from the base medical center was in a trailer shared by two sergeants, one of whom was the accused. When questioned by the OSI, the other sergeant, SGT English denied everything, but said that he had seen the accused with the property at the trailer. SGT English "suggested that he be permitted to attempt to persuade the accused to surrender it to the OSI." The 0SI commander said it "seemed like the only thing to do." Under these facts, the issue was whether or not SGT English was acting in an official capacity when he told the accused that he should return the property. The court held that he was not, explaining its conclusion in the following way:

10.   Here, then, SGT English did not question the accused at the request of OSI. He "was acting entirely for his own benefit to clear himself from suspicion of theft." What the OSI did "in essence was to tell English he could do as he chose... we decline to require that law enforcement officials take steps to prevent citizens from acting as English did, which in reality merely amounted to advising his friend and roommate what the OSI knew, and then suggesting the obvious."

11.   The Duga case may be old, but it is still solid legal precedent. The principles of the case were followed recently in U.S. v. Pittman, 36 MJ 404 (CMA, 1993), accused's section leader, and friend, was required to escort him off post. Escort, unaware of child abuse allegations against the accused, asked what was going on. The accused, in response to this unwarned questioning, admitted hitting his stepson. The trial court held that this questioning was motivated out of personal curiosity and not interrogation or a request for a statement within the meaning of Article 31(b). CMA affirmed, citing the Duga case.

12.   Since Article 31 warnings are designed to counter the coercion that is implicit in military rank and discipline, the warnings are generally not required in the case of undercover informants who meet with the suspects of criminal investigations. U.S. v. Hinkson, 37 CMR 390 (CMA, 1967). Indeed, in the context of a covert drug operation, such a warning could prove fatal to the one giving it. The question remains, however, as to just how far such undercover activities can go, before Article 31 warnings are required. As an example, if the accused has had an attorney appointed to represent him, questioning by an undercover informant will conflict with the accused's right to counsel under the Sixth Amendment to the U.S. Constitution. U.S. v. Henry, 447 US 264, 65LEd2d 115, 100 SCt 2183 (1980). Consequently, do not attempt any such measure with an accused who already has an attorney, or against whom charges have been preferred, without first consulting with the trial counsel.

The same is true for an accused who is in pretrial restraint.

13.   Keep in mind the definition of "official" in the Duga case. Also, remember that Article 31 was intended to protect a suspect from the pressure inherent in military discipline and superiority. Consequently, "only in situations where because of rank, duty, or other similar relationship, there was a possibility of subtle pressure on a suspect to respond would Article 31, UCMJ, apply." Where a suspect was confronted by the victim of his assault, "she in no way stood in a position of authority over (the accused)." Thus, "it was... not possible for her to impose on him any of the subtle pressure or coercion to make a self-incriminating statement, which Article 31 was intended to counter." The suspect, therefore, "had no rational basis to believe his conversations with (her) were anything more than private, emotion-ridden (conversations)... so that Article 31 did not apply to them." U.S. v. Martin, 31 MJ 730 (NMCMR, 1985). When a husband attempted to poison his wife by putting something in her food, she wasn't required to advise him of his rights before asking him about it." Both were Air Force E-6's. U.S. v. Fayne, 26 MJ 528 (AFCMR 1988).

14.   There is, however, a limit: U.S. v. Johnstone, 5 MJ 744 (AFCMR, 1978), is a case where the government simply went too far. An OSI informant worked with the suspect in base supply. As an informant, he provided the OSI with information and evidence relating to the suspect's involvement in the theft of government property from supply channels. The informant was instructed by OSI to go to the accused's room and ask him questions, and then report back to OSI. The defense argued that the informer was a "de facto agent" of the OSI who was directed by his supervising agents to do that which they knew fully well they could not: question the (suspect) without first warning him of his rights under Article 31." The admissions made by the suspect were in response to specific questions that were asked by the informant.

15.   The court first held that the questions were not asked out of the informant's idle curiosity. Also, the informant was not acting in a purely personal capacity. It explained that "the Article 31 requirement does not apply to an undercover agent who merely engages in a casual conversation with an unwary suspect. "There is, the court explained, no compulsion in such a situation. Here, however, the informant "did not engage the accused in ordinary conversation." Instead, he asked specific questions "which were calculated to evoke incriminating responses from an accused...and, of utmost significance, the undercover informant's questions which evoked incriminating responses were propounded on specific instructions from OSI." The court concluded that "the sending of (the informant) to accomplish precisely that which the OSI could not personally do rendered (his) conduct official for purposes of Article 31." In other words, the courts will accommodate the interests of law enforcement, but do not try to stretch the informant exception too far. However, the decision in Johnston must be considered in light of the Supreme Court's recent decision in Illinois v. Perkins, 496US 292, 110 S.Ct. 2394 110LEd2d 243 (1990). In Perkins, civilian police suspected the accused--already in jail on unrelated charges--of murder. An undercover informant was placed in the accused's cell. He questioned the accused about the murder. The accused made incriminating remarks which were used to convict him. All of the lower courts found the statements inadmissible; however, the Supreme Court ruled the statements were admissible because there was no "police-dominated atmosphere or compulsion." The Court relied on the absence of any coercion and further stated that Miranda "does not forbid mere strategic deception by taking advantage of a suspect's misplaced trust."

Finally, let's consider whether medical personnel and social workers are required to inform a suspect of Article 31 rights when they ask questions for purposes of medical treatment.

16.   Medical personnel and social workers are not required to inform a suspect of Article 31 rights as long as the questions are asked for purposes of medical treatment not law enforcement. Two recent CMA cases address this issue. In U.S. v. Bowerman, 39 MJ 219 (CMA, 1994), an Army doctor was not required to inform accused of Article 31 rights when questioning about injuries to a child, even if doctor thought that child abuse was a distinct possibility. The doctor's purpose was medical diagnosis, not questioning for an official law enforcement/disciplinary purpose. Similarly, in U.S. v. Raymond, 38 MJ 136 (CMA, 1993), a social worker, subject to AR 608-18's reporting requirements, was not acting as an investigative agent of law enforcement when he counseled the accused with full knowledge that the accused was- pending charges for child sexual abuse. CMA also ruled that health professionals engaged in treatment do not have a duty to provide Article 31(b) warnings. Please note that even in cases of self-referral, R 608-18 does not create a limited use policy which prevents prosecution of child abusers. It must be noted, however, that under MRE 803(4), the burden of establishing the medical diagnosis or treatment exception is firmly placed upon the government.

In U.S. v. Henry, (ACCA, 1995), statements made by a 15 year old victim to medical personnel were not made with the expectation of receiving medical benefits but for the purpose of facilitating collection of evidence. In dicta, the court notes, in cases where a medical examination is inextricably intertwined with a criminal investigation, and where there is no expressed indication by the "patient" that she had some expectation of receiving a medical benefit, the burden of establishing medical diagnosis or treatment exception is a heavy one for the government. The court notes it may be better practice for CID agents to remain outside the exam room when medical personnel are conducting the rape protocol exam.

PART I - THE RIGHT TO COUNSEL

1.   General. As we have seen, Article 31, UCMJ, does not itself include a suspect's right to counsel. This right, instead, comes from the Supreme Court's Miranda decision. The point to remember is that the right to counsel is a separate protection for the accused, one that exists apart from Article 31. It is an equally important right, however, and must be both understood and observed.

2.   The meaning of "custodial interrogation." As we have seen, Article 31 is triggered when a suspect is questioned by one acting in an official capacity. Article 31, however, does not include the suspect's right to counsel. That right, instead, comes from the Miranda decision, which held the right to be triggered by "custodial interrogation."

PART J - ADVISING A SUSPECT OF HIS RIGHTS

Advising a Suspect of His Rights. As we have seen, a suspect must be advised of his rights before he can be interrogated. Remember, there are rights under both Article 31 and there is a right to counsel under Miranda. Article 31, you will recall, requires advice as to the nature of the accusation, that the suspect has the right to remain silent, and that anything the suspect says may be used against him at trial. If there is "custodial interrogation," then the right to counsel also applies, requiring additional warnings.

1.   This does not mandate a verbatim recital of the exact wording of the Miranda decision. Such rigidity is not required. The exact wording or order of the warnings need not exactly parrot the language of Miranda; rather, the appellate courts will look to the substance of the warnings given to the suspect. California v. Prysock, 453 US 355 69 L.Ed.2d 696, 101 SCt 2806 (1981) and Duckworth v. Eagen, 492 US 195 106LEd2d 166 109 S.Ct.2875 (1989). Still, deviating, or straying, from the wording of Miranda may be risky, so you must be very careful. In one case, for example, the suspect was told that she could "have an attorney appointed to represent you when you first appear before the U.S. Commissioner or the court." This was insufficient, as it did not clearly explain the right to counsel at the interrogation. U.S. v. Garcia, 431 F.2D 134 (9th Circuit, 1970). Similarly, if you stray from the precise wording of the Article 31, you are also taking a risk. You will, of course, remember that Article 31 grants the suspect a right to remain silent. Simply telling him that he need not incriminate himself; however, is not enough. U.S. v. Williams, 9 CMR 60 (CMA, 1953). Also, telling a suspect that he has a right not to make "any statement in writing" is insufficient. U.S. v. Murray, 11 CMR 495 (ABR, 1953). In other words, you need not recite the Miranda decision word-for-word. Be careful, however, since if you stray too far, you may wind up with a defective rights advisement and an inadmissible confession.

2.   When you advise a suspect of his rights, the simplest way is to simply read off of a Rights Warning Procedure/Waiver Certificate (DA Form 3881) or off of a "Miranda Card" (GTA 19-6-6). Both are reproduced at Figures 1 and 2. Both include coverage of the suspect's rights under Article 31 as well as the right to counsel. By using the form or card, you will be sure to include all of the necessary advice to the suspect, and will not run the risk of leaving something out. Also, it will be far easier for you (and the government) to establish a valid waiver of the suspect's rights. If you use the DA Form 3881, for example, it can be introduced into evidence at trial.

Figure 1.   DA Form 3881, Rights Warning Procedure/Wavier Certificate (Front).

Figure 1.   DA Form 3881, Rights Warning Procedure/Waiver Certificate (Back).

Figure 2.   GTA 19-6-6, Verbal Rights Warning.

3.   There is no need for you to memorize the rights warning, administer them from your memory, and then testify in court that you did so. Some investigators think that this will impress the court with their memory capabilities. Actually, it is a combination tailor-made for disaster. Instead of impressing the court, you risk doing just the opposite. At trial, the accused may testify that he was not properly advised of his rights. As the person who did the rights advisement, your testimony will be absolutely critical. You will, literally, make or break the government's case. Unless you testify in a credible manner, the battle will be lost before it has even begun. At trial, all eyes will focus on you. Your testimony must be convincing. The defense attorney, of course, will be trying to impeach you, trying to show that your memory is bad and that you did not adequately advise the suspect of his rights. Do not take it personal--the defense counsel is only doing his job. The point is that if you do your job properly, the defense counsel will not be able to impeach, or destroy, the effectiveness of your testimony. You must be prepared for what will happen at trial. When the defense questions you, it will NOT be like the following:

QUESTION:   Did you advise the suspect of his rights?

ANSWER:   Yes.

QUESTION:   Did you tell him his rights under Article 31, UCMJ?

ANSWER:   Yes.

QUESTION:   Did you also advise him of his right to counsel under Miranda?

ANSWER:   Yes.

QUESTION:   More specifically, did you advise him that he had a right to remain silent?

ANSWER:   Yes.

QUESTION:   Did you tell him he had a right to an attorney?

ANSWER:   Yes.

QUESTION:   Did you tell him he could have the attorney present during the interrogation?

ANSWER:   Yes.

QUESTION:   Did you tell him he could consult with the attorney prior to interrogation?

ANSWER:   Yes.

Do not expect it to go so smoothly. As was noted, testifying in the court is not quite so simple. In the above example, the witness is not really even testifying. The questioner is asking leading questions that include the answers. Such questions are obviously very easy to answer. You do not have to think about the answer at all; simply say "yes" to each question. Unfortunately, that is not the way it goes at trial. Do not expect the defense counsel to make your life quite that simple. More realistically, it will go as follows:

QUESTION:   Did you advise the accused of his rights?

ANSWER:   Yes.

QUESTION:   What did you tell him?

ANSWER:   ?

Here the situation is very different. The question has not given away the answer. Now, the witness must find the answer and testify in a convincing manner. Without the leading questions, then, testifying is much more difficult. In this case, it is easy for the investigator to omit something. As is the case with any witness, under the strain and pressure of cross-examination, and as a result of the natural nervousness caused by testifying at trial, your memory may fail you. It is natural to be nervous when testifying. All witnesses share this feeling, as do most of the attorneys. The point is that if you are prepared to properly testify, your natural nervousness will not be a handicap. Otherwise, as was stated, the result may be a disaster. Consider the following:

QUESTION:   Did you advise the accused of his rights under Article 31?

ANSWER:   Yes.

QUESTION:   What did you tell him?

ANSWER:   I said that anything he said could be used against him, that he had a right to remain silent, and that he had a right to an attorney.

QUESTION:   What else?

ANSWER:   I said he had the right to consult with the attorney before and during the questioning, and that he could stop anytime that he wanted to.

QUESTION:   Is that all?

ANSWER:   I told him that if he did not have an attorney, one would be provided for him. I asked him if he understood his rights and he said that he did.

QUESTION:   Is that all?

ANSWER:   I asked him if he was willing to talk to me without an attorney being present, and he said he was.

QUESTION:   Is that all?

ANSWER:   Yes.

QUESTION:   Are you sure?

ANSWER:   Yes.

QUESTION:   You are positive that is what you told him?

ANSWER:   I think so.

QUESTION:   Are you certain of that? Do not guess.

ANSWER:   Yes, I am positive.

4.   In the above situation, can you tell what was omitted? The investigator, testifying from memory, has omitted any reference to having advised the suspect of the nature of the accusation against him. That is, however, a critical part of the Article 31 rights advisement. The failure to include it renders the warning defective, and may result in suppression of the statement. The investigator may try to claim that he really did give that warning, yet he would now be contradicting his sworn trial testimony. According to his own testimony, under oath, he did not include that part of the warning. Not only that, but he said he was positive of it. The investigator has now been turned into a witness for the defense, and has impeached the government's own case. Even if the witness convinces the judge that he was mistaken and just forgot to include that warning in his testimony, the witness's testimony has been shown to be fallible or poor. The witness has testified under oath and has been proven to be wrong. The defense counsel has now impeached the investigator, who may be the government's main, or only, witness. The witness's bad memory may shatter the rest of the government's case.

5.   Remember, Article 31 only requires three warnings. Here, the witness has testified that he could only remember two out of the three. That is not very good. Since his memory has been shown to be fallible, the rest of his testimony is now subject to doubt. The defense counsel will ask what else the investigator has forgotten, and may argue that the investigator is confusing the accused's case with some other case he worked on a couple of months ago. After all, the human memory is error-prone, and the witness has already been shown to be capable of error.

6.   The point is simple: why let the defense counsel do this to you? It is far preferable to simply read the suspect his rights using the forms noted. If this is done, there is no question as to what was said--it is written on the form. You simply testify that you read the form. The document can then be admitted as an exhibit. Since the witness will testify that he read the suspect his rights off the form, the document can then be admitted as an exhibit. The ability (or inability) to memorize the content of the form is immaterial. This way, the government's case is made a lot simpler and a lot cleaner. The prosecutor will thank you and, when you are done testifying, you will thank yourself.

7.   Sometimes, of course, the suspect will refuse to sign the DA Form 3881, or anything else indicating that he has been advised of his rights and has waived them. He may be perfectly willing to talk to the police, but will not sign the form. In Connecticut v. Barrett, 479 US 523 93LEd2d920 107SCt828 (1987), the suspect was advised of his rights prior to being questioned about a sexual assault. He said he understood his rights and was willing to talk about the incident, but said that he would not give a written statement unless his attorney was present. He was again advised of his rights and repeated that he was willing to talk to the police about the incident verbally, but did not want to put anything in writing until his attorney came. The police, therefore, proceeded to take an oral statement.

8.   The Supreme Court held that the suspect "made clear to the police his willingness to talk about the crime for which he was a suspect." The suspect had said that he wanted an attorney before a "written statement." The police did not, however, attempt to subsequently obtain a written statement from him. Indeed, they could not properly have done so. His limited request for counsel was accompanied "by affirmative announcements of his willingness to speak with the authorities." His request for an attorney prior to making a written statement had been honored by the police. His decision may have been illogical, but that was not the point. The confession was admissible, and the conviction was upheld.

PART K - INTERROGATION OF CIVILIAN SUSPECTS

If a civilian is suspected of an offense, agents and investigators should be familiar with Title 18 U.S.C. section 3501 which deals with admissibility of confessions in any criminal prosecution in federal court. A confession is defined as "... any confession of guilt of any criminal offense or any self-incriminating statement made or given orally or in writing." 18 U.S.C. section 3501(e). The federal judge must determine if this confession was voluntarily given before it can be considered by the jury. In a hearing out of the presence of the jury, the judge will make this determination based upon the totality of the circumstances surrounding the taking of the confession including the following factors set out at 18 U.S.C. section 3501(b):

The presence or absence of any of these factors is not always conclusive of the voluntariness issue. However, giving a full rights advisement using the DA Form 3881 and getting a voluntary waiver thereof would a substantially favorable impact on the judge's determination of the critical admissibility issue. In this regard, agents and investigators should be cautioned about the legal "pitfalls" of conducting a "noncustodial, unwarned interrogation" of a civilian suspect. Once a civilian has been arrested or detained beyond an investigative stop, the federal judge is likely to find that any interrogation conducted thereafter is custodial.

An additional problem arises when the civilian suspect at the time of the confession was "...under arrest or other detention in the custody of any law enforcement officer or law enforcement agency...". This confession shall not be ruled inadmissible solely because of a delay in bringing the suspect "before a magistrate or other officer empowered to commit persons charges with offenses against the laws of the United States... if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given... within six hours immediately following his arrest or other detention..." [18 U.S.C. section 3501(c) (emphasis added)]. The judge may consider any confession made after this six hour period to be inadmissible. Then the prosecution has the burden to show the judge that the delay beyond the six hours was based on reasonable transportation problems or distances to the nearest magistrate or other officer. It should be noted that a federal judge in a recent case arising at Ft McClellan did not find that the distances and transportation problems attendant to an arrest of a civilian on post at 0100 hours justified failure to comply with the six hour rule. In order to ensure compliance with this section, agents and investigators should ensure that they have a means of contacting the FBI and U.S. Attorney any time a civilian is arrested and may be tried in federal court. Once contacted, the FBI and U.S. AUSA-on-call can discuss the case with a federal magistrate to determine the best way to comply with this section.

In another civilian interrogation matter, agents and investigators should be aware that all civilian employees of the U.S. government have an additional right during an interrogation. Whether or not the employee is in custody and Miranda applies, this employee may request to have a member of the employee's union present during the interrogation, if the "employee reasonably believes that the examination may result in disciplinary action against the employee..." Title 5 U.S. Code, section 7114(a)(2)(B)(i) and NLRB v. Weingarten, Inc., 420 US 251, 43 L Ed 2d 171, 95 S Ct 959 (1975). The investigator or agent has no affirmative duty to inform the employee of this right, because the Civilian Personnel Officer has the annual responsibility to inform all civilian employees of this right. Title 5 U.S. Code, section 7114(a)(3). However, if the employee requests a union representative, the investigator or agent must fulfill this request before beginning the questioning. While failure to comply with this request does not result in exclusion of the employee's statement as evidence in a criminal trial, it will likely result in the filing of an unfair labor practice against the military department. The resulting legal actions can be expensive as well as embarrassing for the military service. This situation could result in strained relations between the command, who is embarrassed, and CID or MPI who committed the violation. Therefore, all investigators and agents should be sensitive to this issue when dealing with civilian employees of the U.S. government.

PART L - SPONTANEOUS STATEMENTS

Spontaneous Statements. Miranda v. Arizona, 384 US 436 16 L.Ed.2d 694, 86 SCt 1602 (1966), itself held that "there is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today."

1.   In U.S. v. Seeloff, 15 MJ 978 (ACMR, 1983), an individual entered the MP station at 2225 hours, approached the desk sergeant and stated, "I have a personal problem. I have to talk to somebody. I just murdered someone." The individual appeared to be calm, and the police had no report of a violent crime having been committed. The desk sergeant told his clerk to "see if he could render any assistance." The individual then made the following statement to the clerk:

Desk Clerk (Answer): "No, I didn't."
Individual (Continuing):

Desk Clerk (Answer): "I'm not."
Individual (Continuing):

Desk Clerk (Answer): "I don't know."
Individual (Continuing):

Desk Clerk (Answer): "No, just writing."
Individual (Continuing):

Desk Clerk (Answer): "Yes, probably."
Individual (Continuing):

Desk Clerk (Answer): "I don't know."
Individual (Continuing):

2.   The statement made by this individual was introduced into evidence against him in the subsequent murder trial. On appeal, the court upheld the conviction, holding that the desk clerk had not interrogated the individual. Instead, there was an "active volunteering, if not compulsion" on the part of the individual to tell what he had done. If anything, it was the individual who was questioning the desk clerk and "trying to engage him in conversation." His statement was, therefore, admissible in evidence, and a sentence of confinement for life was upheld.

3.   This is similar to what happened in U.S. v. Willeford, 5 MJ 634 (AFCMR, 1978). There, security police went to pick up a suspect in order to bring him to the Office of Special Investigations (OSI) for questioning. The police knocked on the door to the accused's room. The accused opened the door and blurted out, "I've been expecting you; you've got my wallet; you've got enough on me." The offender had left his wallet at the scene of the rape. The court held that the suspect "on his own account, without prompting or interrogation, made the statement concerning his lost wallet. Such a spontaneous statement, involving neither an interrogation nor request for any statement... does not permit, much less require, a preliminary warning under Article 31."

4.   Remember, Article 31 is not triggered unless there is interrogation or a request for a statement. U.S. v. Caliendo, 32 CMR 405 (CMA, 1962). A spontaneous statement involves neither. U.S. v. Workman, 35 CMR 200 (CMA, 1965). Even though it is incriminatory, "a declaration that is spontaneous, rather than the result of action by a person in authority, is not within the exclusionary rule of Article 31." U.S. v. Miller, 7 MJ 90 (CMA, 1979). Article 31 applies when the accused's statements "are not volunteered." U.S. v. Dohle, 1 MJ 223 (CMA, 1975).

5.   An interesting case is U.S. v. Rollins, 23 MJ 729 (AFCMR, 1986). The accused was an Air Force recruiter under investigation by OSI for "sexual intimacy with AF applicants." The OSI questioned the accused on 3 July 1985, and questioned one of his victims on 4 September 1985. She told the investigator that the accused had been trying to contact her by telephone for two weeks, but that she had not returned the calls. The OSI investigator persuaded her to call the accused from the OSI office. The agent's instructions to her were not to ask any questions, but to listen to what the accused had to say and repeat what he was saying during the telephone conversation. She did so. She later testified at the trial that the accused "told her some people would be calling her and whatever she did, she should deny everything. He further said he'd helped her with the test, but he was not supposed to do so." At the trial, one of the charges was wrongfully attempting to impede an investigation. The statement made by the accused was introduced into evidence against him.

6.   Concerning this statement, the court first held that the victim who talked with the accused "was acting as an agent of the OSI during the telephone conversation." At the same time, however, it further held that "she was not questioning (him). To the contrary, she was returning his telephone calls and attempting to determine why he wished to speak to her." The court concluded:

7.   Here, then, there was no interrogation. It was, instead, "a situation where a suspect on his own initiative made a statement." The rights warnings are not triggered unless there is interrogation. A spontaneous statement lacks this element. As we have seen, as long as the investigator is not conducting an "interrogation, he is not required to interrupt a person who is making a spontaneous statement. In U.S. v. Lovell, 8 MJ 613 (AFCMR, 1979), during a search of a suspect's room, the suspect approached his squadron first sergeant and said, "Chief, can I talk to you?" The response was: "Okay, talk." The suspect then said "I don't know why I did it. I wouldn't have done it if I hadn't been drinking." The court held that this statement "was spontaneous and not prompted by any interrogation."

PART M - HOW TO HANDLE A NONWAIVER

How to Handle a Nonwaiver. If the suspect says that he wishes to remain silent, his wish must be honored. If he is interrogated anyway, his statement "may not be used in evidence against him." U.S. v. Westmore, 38 CMR 204 (CMA, 1968). The law places a "heavy burden" on the government to establish a "knowing and intelligent waiver." U.S. v. Rogers, 48 CMR 861 (ACMR, 1974). When the subject says he wishes to remain silent, then, the police officer must fully respect his choice. The right to cut off questions must be "scrupulously honored." This does not mean, however, that the individual can never again be questioned. The Supreme Court has held that the police can again contact the suspect, after the lapse of a "significant period" of time. This does not, of course, mean a moment's pause. Michigan v. Mosley, 423 US 96 46LEd.2d. 313 96 SCt 321 (1975) and U.S. v. Watkins, 34 MJ 344 (CMA 1992). Check with JAG before proceeding here. There is no specific point at which a time lapse will be deemed to be "significant."

1.   As opposed to simply saying he wishes to remain silent and does not wish to be questioned, a different rule applies when the subject says he wants an attorney. Edwards v. Arizona, 451 US 477 68 L.Ed.2d 378 101 SCt. 1880 (1981), was decided 15 years after Miranda. At the police station, Edwards was advised of his rights, and he said he wanted an attorney. The questioning was stopped and he was taken to a jail cell. At 9:15 A.M. the next morning, two detectives went to the cell and the suspect was told that he had to talk to them. He waived his rights and then confessed. The Supreme Court repeated what it had said in Miranda --if the suspect says that he wishes to remain silent, the interrogation must cease. If the subject requests an attorney, "the interrogation must cease until an attorney is present."

2.   The Edwards rule proved difficult to apply: what did "made available" mean once the accused asked for counsel? In Minnick v. Mississippi, 498 US 146, 112LEd2d 489 111 SCt. 986 (1990), the Supreme Court attempted to resolve the confusion that had surrounded the "made available" portion of the holding in Edwards. The Court held in Minnick that once a suspect invokes the right to counsel afforded by Miranda, he or she may not be interrogated without counsel actually being present at any subsequent government-initiated interrogation--regardless of whether the accused has consulted with an attorney.

3.   What is meant by "further interrogation?" Edwards held that when a suspect requests counsel, he is not subject to further "interrogation." In U.S. v. Peyton, 10 MJ 387 (CMA, 1981), a CID agent immediately stopped questioning a suspect who said he wanted a lawyer. The agent, however, "allowed the (suspect) to remain in his office while he completed a Criminal Investigation Division (CID) Form 44, which is a personal data card that the CID requires an agent or investigator to complete after interviewing a suspect." The completion of the form did not require the suspect to answer any questions. As the agent was completing the paperwork, the suspect asked him "how serious of an incident this was," and subsequently made incriminating statements.

4.   When has a suspect requested counsel? The Minnick and Edwards rule is not triggered until the suspect has requested counsel. Remember the case of Connecticut v. Barrett, 479 US 523, 93LEd2d 920, 107 SCt 828 (1987). There, the suspect said that he understood his rights and had no trouble talking about the incident, but said he "would not give a written statement unless his attorney was present." The Supreme Court ruled that the suspect's "limited" request for counsel was "accompanied by affirmative announcements of his willingness to speak with the authorities." His intentions were clear. They were also honored by the police. The suspect had not broadly invoked his right to counsel for all purposes, but simply said he would not make a written statement without an attorney being present. Under such facts, the police could not have sought a written statement from the suspect; indeed, any attempt to have done so would have been improper. A written statement obtained under such circumstances would not have been admissible. The police, instead, merely talked to the individual and obtained an oral statement from the suspect. This is what he said that he was perfectly willing to do.

QUESTION: "Steve, I want to talk with you in reference to the armed robbery that took place at McDonald's restaurant on the morning of the 19th. Are you familiar with this?"

ANSWER: "Yeah, my cousin Greg was."

QUESTION: "Okay. But before I do that, I must advise you of your rights. Okay? You have a right to remain silent. You do not have to talk to me unless you want to do so. Do you understand that?"

ANSWER: "Uh, she told me to get my lawyer. She said you guys would railroad me."

QUESTION: "Do you understand that as I gave it to you, Steve?"

ANSWER: "Yeah."

QUESTION: "If you do want to talk to me, I must advise you that whatever you say can and will be used against you in court. Do you understand that?"

ANSWER: "Yeah."

QUESTION: "You have a right to consult with a lawyer and to have a lawyer present with you when you're being questioned. Do you understand that?"

ANSWER: Uh, yeah. I'd like to do that."

QUESTION: "Okay."

Instead of terminating the questioning at this point, however, the police "proceeded to finish reading Smith his Miranda rights and then pressed him again to answer their questions." It went as follows:

QUESTION: "If you want a lawyer and you're unable to pay for one, a lawyer will be appointed to represent you free of cost, do you understand that?"

ANSWER: "Okay."

QUESTION: "Do you wish to talk to me at this time without a lawyer being present?"

ANSWER: "Yeah and no, uh, I don't know what's what really."

QUESTION: "Well, you either have (to agree) to talk to me this time without a lawyer being present, and if you do agree to talk to me without a lawyer being present you can stop me at any time you want to."

ANSWER: "All right. I'll talk to you then."

5.   When has a suspect "initiated" the further conversation?" In its Edwards decision, the Supreme Court ruled that once a suspect has asked for a lawyer, he is not subject to further interrogation until counsel is provided UNLESS the suspect himself has initiated the further dialogue, or conversation, with the police. In Wyrick v. Fields, 459 US 42 74 L.Ed.2d 214 86 SCt. 1602 (1982), the suspect was charged with rape. After discussing the case with his lawyer, he asked for a polygraph examination. The CID conducted the examination, after first again advising the suspect of his rights, and obtaining his consent to take the examination. The suspect waived his rights. After being told he had failed the examination, the suspect confessed. On appeal, the Supreme Court ruled that "when the suspect has initiated the dialogue... the right to have a lawyer present can be waived." By requesting the polygraph, the suspect himself had "initiated interrogation." The defense also argued that the police violated the suspect's rights by not AGAIN advising him of his rights before the posttest interview. The Supreme Court disagreed:

6.   The problem of successive statement--imputed knowledge. Edwards has been described as a "bright-line rule." Solem v. Stumes, 465 US 638 79 L.Ed.2d 579 104 SCt 1338 (1984). It is a rule that will be strictly enforced, and the courts are alert to prevent its evasion. A good example of how strict the courts will be in this area is Michigan v. Jackson, 475 US 625, 89LEd2d 631, 106SCt 1404 (1986). There, the suspect said he wanted a lawyer when he was arraigned (advised by the judge of his rights and notified of the charges) on March 23. On March 26, the suspect was interrogated by the police, after having been advised of his rights. The detective in charge of the investigation had been present at the arraignment, but was not present at the later interrogation. The officers who did interrogate the suspect argued that they were not aware of his prior request for counsel, an argument that the Supreme Court termed "unavailing." Since the suspect had clearly asked for a lawyer, the further interrogation was impermissible: "The police cannot simply ignore a defendant's unequivocal request for counsel." The court then explained:

7.   When has counsel been "made available?" The bright line rule, is once an in-custody suspect has requested counsel, all questioning must cease until counsel is actually present. See Minnick, discussed above in PART M, "How to Handle a Nonwaiver."

PART N - PRESENCE OF COUNSEL/RIGHT TO COUNSEL

1994 Amendments to the Military Rules of Evidence deleted the old MRE 305(e), Notice to Counsel, in its entirety. Further, the frequently cited court-martial case of U.S. v. McOmber, 1 MJ 380 (CMA, 1976), regarding notice to counsel requirements imposed on law enforcement officers is no longer valid law and should not be followed.

MRE 305(e) was renamed Presence of Counsel and was amended to conform military practice with the Supreme Court's decisions in Minnick v. Mississippi, 498 US 146 (1990) and McNeil v. Wisconsin, 501 US 171 (1991). MRE 305(e) was subdivided to distinguish between the right to counsel under the Fifth Amendment (custodial interrogation) and Sixth Amendment (post-preferral interrogation). MRE 305(e)(1) requires, if an accused during custodial interrogation requests counsel, counsel must be present before any subsequent interrogation may proceed. MRE 305(e)(2) provides that if an accused during a post-preferral interrogation requests counsel, counsel must be present before any subsequent interrogation concerning that offense may proceed.

In Minnick, the Supreme Court determined that the Fifth Amendment right to counsel protected by Miranda v. Arizona, 384 US 436 (1966) and Edwards v. Arizona, 451 US 477 (1981), as interpreted in Arizona v. Roberson, 486 US 675 (1988), requires that when a suspect in custody requests counsel, interrogation shall not proceed unless counsel is present. Government officials may not reinitiate custodial interrogation in the absence of counsel whether or not the accused has consulted with his attorney. Minnick, 498 US at 150-152. This rule does not apply, however, when the accused or suspect initiates reinterrogation regardless of whether the accused is in custody. Minnick, 498 US at 154-155; Roberson, 486 US at 677.

MRE 305(e)(2) follows McNeil and applies the Sixth Amendment right to counsel to military practice. Under the Sixth Amendment, an accused is entitled to representation at critical confrontations with the government after the initiation of adversary proceedings. In accordance with McNeil, the amendment recognizes that this right is offense-specific and, in the context of military law, that it normally attaches when charges are preferred. See U.S. v. Jordan, 29 MJ 177, 187 (CMA, 1989); U.S. v. Wattenbarger, 21 MJ 41 (CMA, 1985), cert. denied, 477 US 904 (1986). MRE 305(e)(2) supersedes the prior notice to counsel rule. The prior rule based on U.S. v. McOmber, 1 MJ 380 (CMA, 1976), is not consistent with Minnick and McNeil. Despite the fact that McOmber was decided on the basis of Article 27, UCMJ, the case involved a Sixth Amendment claim by the defense, an analysis of the Fifth Amendment decisions of Miranda v. Arizona, 384 US 436 (1966), and U.S. v. Tempia, 16 USCMA 629, 37 CMR 249 (1967), and the Sixth Amendment decisions of Massiah v. U.S., 377 US 201 (1964). Moreover, the McOmber rule has been applied to claims based on violations of both the Fifth and Sixth Amendments. See, e.g., U.S. v. Fassler, 29 MJ 193 (CMA, 1989). Minnick and McNeil reexamine the Fifth and Sixth Amendment decisions central to the McOmber decision; the amendments to MRE 305(e) are the result of that reexamination.

Commanders and law enforcement officers must also be aware of and understand MRE 305(g)(2)(B) which is a new rule and provides that an accused's waiver of the Fifth Amendment right to counsel, after having previously exercised that right at an earlier custodial interrogation is presumptively invalid, unless the government can demonstrate that: 1. The accused initiated the communication leading to the waiver, or 2. The accused's freedom has not been restricted by confinement, or other means, during the period between the request for counsel and the subsequent waiver. The new MRE 305(g)(2)(B) conforms the military practice with the Supreme Court's decision in Minnick v. Mississippi, 498 US 146 (1990). In that case, the Court provided that an accused or suspect can validly waive his Fifth Amendment right to counsel, after having previously exercised that right at an earlier custodial interrogation, by initiating the subsequent interrogation leading to the waiver. Id. at 156. This is reflected in MRE 305(g)(2)(B)(i). MRE 305(g)(2)(B)(ii) establishes a presumption that a coercive atmosphere exists that invalidates a subsequent waiver of counsel rights when the request for counsel and subsequent waiver occur while the accused or suspect is in continuous custody. See McNeil v. Wisconsin, 501 US 171 (1991); Arizona v. Roberson, 486 US 675 (1991). The presumption can be overcome when it is shown that there occurred a break in custody which sufficiently dissipated the coercive environment. See U.S. v. Schake, 30 MJ 314 (CMA 1990).

In U.S. v. Vaughters, 42 MJ 564 (AFCCA, 1995), interrogation initiated by Air Force OSI agents after accused had requested counsel during an earlier interview did not violate accused's right to counsel where accused was released from custody immediately after he requested to speak with an attorney, and he did not contact an attorney for assistance with the accusation for the next 19 days, despite being on an Air Force installation on which two military defense counsel were located. During the 19 day period, accused was neither in custody nor subject to any other conditions on liberty. Further, he was not subjected to any badgering by police. Despite these facts, he did seek the assistance of counsel. The Air Force Court stated that they did not believe that the Supreme Court meant to find an accused in SSgt Vaughters' position to be under such "inherently compelling pressures" as to need any special protection. They found that the AFOSI-initiated interrogation of SSgt Vaughters after this passage of 19 days did not violate his right to counsel. Accused's subsequent waiver of rights and confession were proper and legally admissible according to the Air Force Court.

MRE 305(g)(2)(C) is also new and conforms military practice with the Supreme Court's decision in Michigan v. Jackson, 475 US 625, 636 (1986). In Jackson, the Court provided that the accused or suspect can validly waive his or her Sixth Amendment right to counsel, after having previously asserted that right, by initiating the subsequent interrogation leading to the waiver. The Court differentiated between assertions of the Fifth and Sixth Amendment right to counsel by holding that, while exercise of the former barred further interrogation concerning the same or other offenses in the absence of counsel, the Sixth Amendment protection only attaches to those offenses as to which the right was originally asserted. In addition, while continuous custody would serve to invalidate a subsequent waiver of a Fifth Amendment right to counsel, the existence or lack of continuous custody is irrelevant to Sixth Amendment rights. The latter vest once formal proceedings are instituted by the State and the accused asserts his right to counsel, and they serve to ensure that the accused is afforded the right to counsel to serve as a buffer between the accused and the State.

PART O - THE VOLUNTARINESS STANDARD

1.   General. Even if a suspect has been advised of his rights and has waived them, any statement that he makes must still be voluntary in order to be admissible. A statement is "involuntary" if it has been obtained in violation of the Fifth Amendment/Article 31 "or through the use of coercion, unlawful influence, or unlawful inducement" (MRE 304(c) (3). In other words, simply because you have advised the suspect of his rights and he has waived them, this does not mean that you can now do, literally, anything that you want to. There are still limits, and you need to know what they are. The issue is whether the interrogator's actions are such "as to overbear the defendant's will to resist, and bring about confessions not freely self-determined." U.S. v. St. Clair, 19 MJ 833 (NMCMR, 1984). In Miller v. Fenton, 474 US 104, 88LEd2d 405, 106SCt 445 (1985), the Supreme Court stated that "certain interrogation techniques, either in isolation or as applied to the unique circumstances of a particular suspect, are so offensive to a civilized system of justice that they must be condemned." Confessions that have been obtained "by means revolting to the sense of justice" are not admissible.

2.   Coercion (the negative influences).

3.   Unlawful inducements (the positive influences). A confession is also involuntary and inadmissible if it is the product of an unlawful inducement. This is the situation where the questioner makes an offer "too good to be true" and therefore causes the suspect to make a confession. Such confessions are not reliable, since the suspect may be confessing not because he is guilty, but simply to get the benefit of the bargain.

4.   Police deception. Once a suspect has waived his rights and has agreed to talk to the authorities, it is important to look at the validity of certain interrogation techniques. The use of deception "is not impermissible as long as the artifice was not designed or calculated... to produce an untrue confession." U.S. v. McKay, 26 CMR 307 (CMA, 1958). Fraud and deceit are improper "only when the nature of the fraud or deceit is calculated to elicit an untrue statement." U.S. v. Gibson, 14 CMR 164 (CMA, 1954). The mere use of deception, then, is not improper. U.S. v. Davis, 6 MJ 874 (ACMR, 1979). Remember, however, that we are speaking of interrogation techniques that are used AFTER the suspect has been properly advised of his rights, and he has voluntarily agreed to talk to the authorities. Do not, under any circumstances, commit fraud or deceit while you are advising a suspect of his rights. Any deceit at this point will result in a defective rights advisement and an inadmissible confession.

A good example is U.S. v. Melanson, 15 MJ 765 (AFCMR, 1983). The suspect "was tricked into believing film existed" and "that his criminal activities (had) been recorded on film." The court ruled that "a trick or artifice which has no tendency to produce a false confession is a permissible weapon in the interrogator's arsenal." The court said that it was similar to "misrepresenting that (a) murder weapon had been found," "that fingerprints found at a crime scene matched the accused," and that the suspect's fingerprints "had been found on (a) blood-covered knife." In Frazier v. Cupp, 394 US 731, 22 L.Ed.2d 684 89 SCt 1420 (1969), the suspect was falsely told that his associate had confessed. The Supreme Court held that the police "misrepresentation" did not, standing alone, make the confession inadmissible.

PART P - THE PUBLIC SAFETY EXCEPTION

1.   In U.S. v. Seeloff, 15 MJ 978 (ACMR, 1983), an individual walked into the KP station at 2225 hours, and said, "I have a personal problem. I have to talk to somebody. I just murdered someone." An MP asked him where the body was. Although the case was not decided on this point, the court held that the investigator "felt he needed to get this information in the event there was someone thought to be dead, but who was only injured and in need of help."

2.   The same issue reached the U.S. Supreme Court a year later. The police chased a rapist into a supermarket. The victim said that the attacker had a gun. When he was apprehended inside of the store, however, the suspect's holster was empty. A police officer asked him where the gun was. The court concluded that Miranda warnings were not necessary, and that the suspect's response (and the gun) were admissible. The court explained that "overriding considerations of public safety justify the officer's failure to provide Miranda warnings before he asked questions devoted to locating the abandoned weapon... concern for public safety must be paramount to adherence to the literal language of Miranda." Here, the police "were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than a danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it." The court concluded:

3.   The question the police officer asked, then, was not designed "solely to elicit testimonial evidence from a suspect," but was "necessary to secure their own safety or the safety of the public." New York v. Quarles, 467 US 649, 81 L.Ed.2d 550 104 SCt 2626 (1984). Under these facts, then, Miranda warnings were not necessary. The military courts confronted this problem in U.S. v. Jones, 19 MJ 961 (ACMR, 1985), aff'd, 26 MJ 353 (CMA, 1988). A suspect said that he stabbed someone. Without advising him of his rights, the police asked him where the body was, and where the victim had been stabbed. The court cited the public safety issue, and applied it to what it saw as a "rescue" situation. Two factors had to be present in order for the rescue situation to apply. First, there had to be the possibility of saving human life or avoiding serious injury by rescuing the one in danger. Second, the situation had to be such that no course of action other than questioning the suspect would promise any relief from the situation. Here, the questions asked "were the only available means of obtaining information necessary for the provision of adequate medical services to a seriously injured person. As long as the victim remained unlocated and unattended, his life potentially hung in the balance." There was, therefore, no need to advise the suspect of his rights prior to asking where the victim was, and where the victim had been stabbed.

4.   The police faced a similar problem in U.S. v. Mesa, 638 F.2d 582 (3d Circuit, 1980). An FBI hostage negotiator was trying to convince a suspect to surrender peacefully. The suspect had shot his wife, and was barricaded in a motel room, where he was believed to be holding hostages. Certain statements that the suspect made to the police were later used in evidence against him. The court held that Miranda warnings were not needed in such a situation. "Extending Miranda to this situation would put law enforcement officers to a delicate and difficult choice. When confronted with an armed, barricaded suspect who is possibly holding hostages, their attention would be diverted from what should be their primary purpose--that of using the means most likely to convince the suspect to surrender peacefully without harming anyone in the area." In such a situation, the Miranda warnings "would be counterproductive to creating the atmosphere of trust that is necessary to convince a suspect like Mesa to surrender peacefully." In fact, the giving of the warnings in such cases "could have disastrous effects on the suspect and perhaps on others in the vicinity."

5.   In another case, the defendant and his accomplice had kidnapped someone. While the victim was confined at gunpoint by his accomplice, the defendant went to a ransom meeting at a shopping center. The defendant, as noted, left his accomplice guarding the victim. At the ransom meeting, the defendant pulled a gun and was immediately apprehended. At this point, the police knew that the victim's life was "in grave nature." If the defendant did not return shortly, the police were afraid that the victim would be killed by the accomplice. Faced with these facts, the police demanded that the defendant tell them where the victim was. He refused, at which time the police began "twisting his arm behind his back and choking him until he revealed where (the victim) was being held." The defendant was then taken to the police station and questioned by some other police officers. This questioning occurred about two hours after the incident at the shopping center. After being advised of his rights by these other officers, the suspect confessed.

6.   On appeal, the court held that the coercive acts of the police at the shopping center had no causative effect on the suspect's later confession at the police station. The court did not consider whether his initial statement (regarding the victim's whereabouts) would have been admissible, as the government did not attempt to get this statement admitted into evidence. The court did, however, make the following statement regarding what the police had done:

7.   On further appeal, the conviction was upheld. The federal court agreed that there was a break in the stream of events which served to dissipate (eliminate) the taint of the earlier confession regarding the victim's whereabouts: "The police, motivated by the immediate necessity of finding the victim and saving his life, used force and threats on Leon in the parking lot... the necessity of saving the victim's life, the different physical setting, the different group of questioning officers, and the meticulous explanation to appellant of his constitutional rights constituted a sufficient break in the stream of events to dissipate the effects" of the police officers' initial coercive actions. Leon v. Wainwright, 734 F.2d 770 (Eleventh Cir., 1984). The court noted that "the violence was not inflicted to obtain a confession or provide other evidence to establish appellant's guilt. Instead, it was motivated by the immediate necessity to find the victim and save his life." Even though the admissibility of this first statement was not at issue (since the government had not offered it into evidence), the court had this to say:

PART Q - THE EXCLUSIONARY RULE

1.   General. A statement that has been obtained in violation of the applicable legal requirements "may not be received in evidence" (MRE 304a). The exclusionary rule "has traditionally barred from trial evidence obtained either during or as the direct result of an unlawful intrusion." It includes not just the confession that has been illegally obtained, but also any derivative evidence. "Derivative evidence" is that which has been discovered as a result of the illegally obtained evidence. Stated differently, the government may not exploit its illegal acts by using the illegally secured confession in order to obtain other evidence. U.S. v. Peurifoy, 48 CMR 34 (CMA, 1973).

2.   Exceptions to the exclusionary rule. The purpose of the exclusionary rule is to deter or prevent unlawful police conduct. The courts reason that, if the evidence is not going to be admissible in court, the police will have no reason to act unlawfully. After .all, the goal of the police is not to obtain confessions that will be thrown out of court. Based on its purpose, however, the application of the exclusionary rule will depend on whether or not such would further the goal of deterring the police from breaking the law. Illinois v. Krull, 480 US 340, 94LEd2d 364, 107 SCt 1160 (1987).

3.   The problem of successive statements. Assume that you have violated Article 31/Miranda, and have obtained a confession that is going to be inadmissible in court. Is there any way you can cure this defect and obtain a second statement that WILL be admissible? If so, how? The basic problem in such a situation is that the unlawfully obtained confession may have tainted, or contaminated, any subsequent statement that the suspect may make. U.S. v. Ravenel, 26 MJ 344 (CMA, 1988). In other words, "if the government obtains admissions illegally, and they are of a nature likely to produce a subsequent confession, a strong showing that a subsequent warning severed the presumptive influence must be made to permit use of the confession. Furthermore, absent any showing that the accused knew or had been informed that his prior admissions could not be used against him, the fact that he was advised of his rights prior to the execution of his (second) confession would normally not avoid (exclusion)." U.S. v. Bennett, 21 CMR 223 (CMA, 1956).

PART R - LINE-UPS

1.   General - the right to counsel. A line-up is regarded as unreliable if it "is so suggestive as to create a substantial likelihood of misidentification" (MRE 321(b)(2)A). A suspect in the military has a right to counsel at a line-up, but only if the line-up is conducted "after preferral of charges or imposition of pretrial restraint... for the offense under investigation" (MRE 321(b)(2)A). If the suspect requests counsel (assuming he is entitled to such), an attorney "shall be provided... before the line-up may proceed." The suspect may waive this right, if such waiver is "freely, knowingly, and intelligently made."

2.   Photographic line-ups. There is no right to counsel here. The accused himself has no right to be present. The reason is that "no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary." In the case of photographs, the defense can later reconstruct what occurred. There is no more right to counsel here than there is when the prosecutor is questioning witnesses in his office. U.S. v. Ash, 413 US 300, 37 L.Ed.2d 619, 93 SCt 2568 (1973). The right to the presence of counsel "applies only to corporeal (physical), not photographic, exhibitions of an accused to witnesses." U.S. v. Smith, 44 CMR 904 (ACMR, 1971). This is also true in the case of "an unintentional exposure... a situation in which the accused is inadvertently and unintentionally exposed to witnesses." U.S. v. Young, 44 CMR 670 (AFCMR, 1971).

3.   The due process standard. As was noted earlier, the line-up must not be "so suggestive as to create a substantial likelihood of misidentification" (MRE 321(b)l). In other words, it must not be unfair. In U.S. v. Wade, 388 US 218, 18 L.Ed.2d 1149, 87 SCt 1926 (1967), the Supreme Court noted the potential problems with eyewitness testimony, and the dangers of unreliable, suggestive identification procedures. There are, then, "hazards of serious unfairness" and "grave potential for prejudice."

PART S - CONCLUSION

The Fifth Amendment's privilege against compelled self-incrimination is an extremely important right of a person suspected of a crime. Confessions which are obtained through coercion and unlawful inducements are simply not reliable. The laws are not intended to frustrate the legitimate concerns of law enforcement. The purpose is to accommodate BOTH the need for effective enforcement of our laws, as well as the equally important rights of the criminal defendant. The police officer who understands the basic laws which govern this area will not be thwarted in the accomplishment of his job. As is also true in the area of the Fourth Amendment (the law of search and seizure), the difficulty is in attaining a balance between those two needs. It is the frequently voiced debate concerning "the rights of the state versus the rights of the individual." The point that must be made is that there need be no confrontation between the two interests at stake here; indeed, there cannot be. Those who question persons suspected of criminal offenses must understand the need to preserve the balance between these two interests. If our law enforcement officials understand the issues that are involved here, maintain the necessary perspective, and act reasonably and with good faith, they will find the courts are not their enemy.

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