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Article 31 Waivers (podcast transcript)

Bruce: Hello, and welcome. My name is Bruce Landrum, and with me today is Gabriel Pedrick. We are both instructors with the Legal Division at the Federal Law Enforcement Training Center. So, Gabe tell us a little about your background.

Gabe: Hello. Well, I have pretty unique situation in that I am currently an Active Duty Judge Advocate for the United States Air Force, and I am detailed as an instructor to FLETC’s legal division. Before being assigned here, I served as both a military prosecutor and as a military defense counsel.

Bruce: And I was a Judge Advocate for the United States Marine Corps. I served in a number of different capacities with the Marines, including as Staff Judge Advocate and as a Military Judge. I retired a little over a year ago, and have been working as an instructor here at FLETC. This podcast is part of a series on the law surrounding self-incrimination in the military. Specifically, we’re going to focus now on how a suspect either waives or invokes his rights under Article 31 of the Uniform Code of Military Justice, (or UCMJ), and what law enforcement options are available. But first let’s introduce ourselves.

Gabe: Sounds good. Now, we should point out up front that there are other PodCasts available regarding when Article 31 warnings should be given, and how those Article 31 “triggers” differ from the Miranda “triggers” under the Fifth Amendment.

Bruce: That’s right, so just to review, Miranda applies whenever you have Cops + Custody + Interrogation, because Miranda is a rule intended to protect against the compulsion inherent in custodial interrogation. Article 31, on the other hand, is a rule aimed at protecting against the compulsion inherent in the military because military members will naturally feel compelled to comply with military authorities. That’s why custody isn’t the issue with Article 31—instead, Article 31 applies whenever someone subject to the UCMJ, or military law enforcement agents such as OSI or NCIS, wants to question a person who is also subject to the UCMJ, and who the agent reasonably suspects has committed a crime.

Gabe: So now the question becomes, once the agent advises the suspect of his Article 31 rights, what happens next. In a sense, it’s really the suspect who is in the driver’s seat at this point.

Bruce: That’s right, essentially the suspect can choose one of four options. First, he could invoke his right to silence. Second, he could invoke his right to counsel. Third, he could invoke both his right to silence and his right to counsel. Or Fourth, he could waive both his right to silence and his right to counsel, and so, continue to participate in the interrogation.

Gabe: OK. Now, if he invokes one of his rights, there are certain steps to take and options law enforcement has, but why don’t we start with the idea of waiver. My question has always been, aren’t we making things more complicated than they need to be? Especially with the right to remain silent—why can’t we just start asking questions, and if the suspect doesn’t want to answer, then he doesn’t have to answer. Why all this formality about invoking rights and waiving rights? Doesn’t that just confuse suspects?

Bruce: That’s a valid concern, and the easy answer is that we go through this process because the rules require us to. But really, the concern is not just that suspects must be given these rights if they want to take advantage of them, but we also want to be sure that they know they have the rights to begin with. The idea is that we can’t be sure that someone is really choosing to make a statement of their own volition, especially in the relatively coercive environment of the military, unless we are crystal clear about what their options are ahead of time.

Gabe: So, I guess it’s possible that from the outside, even though it seems like someone is not being compelled, in reality they might feel like they don’t have a choice.

Bruce: Exactly, and since we can’t get inside someone’s head in order to see what they think and feel, we have these rules in place to make sure that at the very least they have acknowledged that they understand what their rights are and so the decision to proceed is their own.

Gabe: Now with Miranda waivers, we use the pneumonic “Vick” – V. I. K. That is, a waiver has to be Voluntary, Intelligent, and Knowing. Is the rule the same for Article 31?

Bruce: Essentially, it is the same. Under Article 31, the phrase we use is that any waiver must be made “freely, knowingly, and intelligently.”

Gabe: That doesn’t really lend itself to a cool pneumonic, does it?

Bruce: No, but the idea is same. First, any waiver has to be the suspect’s own choice, no compulsion from outside. And Second, before the suspect can waive they have to know what their rights are and be able to understand the consequences of giving up those rights.

Gabe: So . . . compulsion, are we talking “water-boarding” here?

Bruce: Well, I’m sure that would do it, but even government action that isn’t to that extreme could count as “compulsion.” Any threats or intimidation will count against a statement being given freely. For instance, if agents threatened that the suspect’s career advancement will be jeopardized unless he cooperates with the investigation, that could certainly make a judge throw out any subsequent statement as being the product of coercion.

Gabe: OK, so the first part of the test is that if the suspect is going to waive his rights and talk to the agents, then it really does have to be that suspect’s free choice. What about the second part of the test?

Bruce: Yes, any waiver also has to be “knowing and intelligent.” Now that doesn’t mean the suspect has to be a legal scholar, or even that making a statement has to be in his own best interests. All that means is that the suspect has to have a basic understanding of what his rights are, and that if he chooses to talk anything he says could be used against him later on, either at a court-martial or otherwise.

Gabe: OK, so we have the standard. If the suspect is going to waive his rights and talk to the investigators, that waiver must be given “freely, knowingly, and intelligently.” After an agent reads the suspect his Article 31 rights from the card, is there anything else special that needs to be done? Any magic words or phrases?

Bruce: No magic words. But, the military rule in this area is a little bit more stringent than with Miranda. Under the Military Rules of Evidence in order to have a valid waiver, the suspect must acknowledge affirmatively that he or she understands the rights involved, affirmatively decline the right to counsel, and affirmatively consent to making a statement.

Gabe: That IS a little different than Miranda. For Miranda, there was a recent case in which the Supreme Court decided that even though the suspect didn’t come out and say he agreed to waive his right to remain silent, he essentially demonstrated that was his choice by going ahead and answering questions anyway, after being advised of his rights. That case might well have had a different result if it had been Article 31 instead of Miranda.

Bruce: That’s right. Congress can give servicemembers greater protections than what is necessary under the Bill of Rights, and this is good example.

Gabe: So, we can say a “best practice” for military agents will be to first read the Article 31 rights verbatim from their cards, or from a form. Next, confirm with the suspect that he understands the rights involved. Then, affirmatively ask the suspect if he is willing to waive the right to speak to an attorney and is willing to make a statement.

Bruce: Yes, remembering, there are no magic words, but this basic pattern should be followed, because that’s what the rules require for a waiver under Article 31.

Gabe: Now, generally speaking it will always be best to get the waiver confirmed in writing, since that will be the best evidence to use later if there is a trial, but must a waiver be in writing?

Bruce: No. As with the rule for Miranda, an Article 31 waiver can be done orally as well, a written waiver is not required.

Gabe: OK, so that’s one option the suspect has . . . he could formally waive his rights and choose to participate in the interrogation. What if he doesn’t want to talk and invokes his rights?

Bruce: Well, as with Miranda, we have to be clear as to which right the suspect is invoking—whether it’s the right to remain silent, or the right to have an attorney present, or both.

Gabe: Sounds good. So, let’s say the agent has informed the suspect of his rights, the suspect indicates he understands his rights, and then the agent asks the suspect if he’s willing to waive his rights and answer questions, and the suspect says “no,” that he doesn’t want to talk to the investigators. What’s next?

Bruce: Well, the rule says that if a person chooses to exercise the privilege against self-incrimination, questioning must cease immediately.

Gabe: That seems like a pretty clear rule, but what comes to mind is something we’ve all seen from police shows or movies where the investigator is walking out of the room, but says something like “you’re going to wish you talked to us” or “too bad you’re missing this chance to make things better” or something like that—some kind of parting shot that is not really a question at all. Is that kind of thing OK?

Bruce: Good question. What the court is ultimately going to ask about something like that is whether the parting shot is what we call the “functional equivalent” of interrogation. So, if the court decides that, even though it wasn’t a question, the statement was made in order to try to get the suspect to change his mind and join the interrogation, then it will not be allowed.

Gabe: Alright, next question, if all questioning must cease immediately once the right to silence is invoked, can investigators ever take up questioning again, or is silence forever?

Bruce: Pardon the pun, but the rule itself is silent on this issue.

Gabe: Very funny.

Bruce: However, in practice, it will be the same as under the 5th Amendment and Miranda, that is, so long as a reasonable cooling off period takes place, say several hours at least, then investigators can re-approach and ask whether the suspect is willing to waive his rights at that point.

Gabe: OK, so now what if instead of saying “I don’t want to talk,” what if the suspect says “I want a lawyer.”

Bruce: Right, if a suspect invokes the right to counsel then first of all, the interrogation must stop. For now, we are talking about a situation in which charges have not yet been preferred. If charges have been preferred, then the 6th Amendment right to counsel kicks in, and cover that here in a little bit. So, before charges are preferred, and if the suspect is in custody at the time, or would reasonably feel like they were in custody, then the rule says not only that all questioning must cease, but further clarifies that by adding that all questioning must cease until counsel is present.

Gabe: OK, but I thought with Article 31, that it doesn’t matter if someone is in custody or not.

Bruce: Well, exactly, Article 31 rights must be advised whether or not the interrogation is custodial.

Gabe: OK, and so this is saying that if the suspect IS in custody, and if the suspect remains in custody, then once the right to counsel is invoked, there cannot be any further questioning or seeking of a waiver, at least not until the suspect actually has counsel present with him. Now, of course, the next question is, what if the suspect is NOT in custody, or if he was in custody but is later released. For Miranda, agents probably remember something about a 14-day rule, that if a suspect invokes the right to counsel, but then is released from custody and is free for a period of 14 days, then officers may re-approach and see if he’s willing to waive his rights at that point. Is it the same for Article 31?

Bruce: It’s a similar rule for Article 31, but not exactly the same. In this situation, what the military judge will be looking for is whether the suspect, while he is out of custody, had a real opportunity to seek legal advice. Even before the Supreme Court established the 14 day rule, there were opinions from military cases that held that if the suspect really did have an opportunity to seek legal advice or to talk with family and friends, then even a break as short as a day or two was sufficient.

Gabe: But, I suppose if the suspect is in a remote location or something like that, and he doesn’t really have access to an attorney, then it might not matter how much time passes.

Bruce: True, but in practice, the military does a pretty good job at making military defense counsel available, even in austere conditions.

Gabe: So, to summarize, if a suspect invokes the right to silence . . .

Bruce: Then whether or not he is in custody, all questioning will cease, at least for several hours, at which point investigators may re-approach to see if he has changed his mind.

Gabe: And, if the suspect invokes the right to counsel, (or BOTH the right to silence and the right to counsel) . . .

Bruce: Then we have to analyze whether the suspect is in custody or not.

Gabe: Right, if he is IN custody, then no re-approaching unless his counsel is present. If he’s not in custody, investigators must wait to re-approach at least until the suspect has had a real opportunity to get the advice of counsel.

Bruce: Exactly. And notice, what is important is the opportunity to get counsel, the rule isn’t going to require that the suspect actually talk to counsel before agents re-approach.

Gabe: OK, so this is very similar to the rules for Miranda and the 5th Amendment, although there are a few important differences. But, officers also need to be aware of the 6th Amendment right to counsel as well, which kicks in whenever a court case is actually initiated by either an Initial Appearance, the filing of an Information, or by a Grand Jury Indictment. What does Article 31 have to say about that?

Bruce: Within the framework of the UCMJ, what starts the court case against the suspect, and therefore what initiates the 6th Amendment right to counsel, is the preferral of charges. “Preferral” is when the accused is formally notified of what charges he is facing and that his Commander is recommending that the charges be tried by a Court-Martial. And, the Military Rules of Evidence make a distinction as to what must happen if a suspect invokes his right to counsel after preferral has taken place.

Gabe: Right, essentially, if the suspect invokes his right to counsel after preferral, then officers will NOT be able to re-approach later on, no matter how much time goes by or whether or not the suspect has the opportunity to speak to counsel. So, if the case is post-preferral, there’s really only one bite at the apple from the investigator’s perspective, and if the suspect says he wants an attorney, then all interrogations are over, at least on the subject of the charges on the charge sheet. But now, here’s a question for you. Under the 6th Amendment, the Supreme Court is now making a distinction as to whether a defendant has asked for counsel merely in relation to his overall defense, as opposed to asking for counsel specifically with respect to questioning. Basically, if it’s just a general request to have an attorney as part of his defense, then officers can still approach to see if he’s willing to waive the presence of his attorney for questioning. Do the Military Rules of Evidence make this kind of distinction?

Bruce: Interestingly enough, the Military Rules seem to have anticipated this distinction by the courts. They state that post-preferral, if the accused either requests counsel or has an appointed or retained counsel, then counsel must be present before any subsequent interrogation concerning that offense may proceed. So, this looks like another area where the military rule gives a little more protection to the accused than the Constitution requires, and so we should be cautious.

Gabe: Another thing to keep in mind is that with all of these rules, whether the suspect has invoked the right to silence, or counsel, whether it’s pre- or post- preferral; we should remember that if the suspect starts the conversation, then it will always be OK for agents to talk and ask questions.

Bruce: Right, but remember, you’ll still want to get a clear waiver before you proceed.

Gabe: Absolutely

Bruce: OK, that’s probably enough and we will wrap up this discussion of waivers and invocations of Article 31. For all the legal issues PodCasts, you can find them on the internet at FLETC Legal Division’s website.

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