Miller: Hi, I’m Tim Miller. With me today is Jenna Solari. Jenna and I are instructors at the Legal Division at the Federal Law Enforcement Training Center in Glynco, Georgia. Jenna, say hello.
Solari: Hi everybody.
Miller: Jenna and I teach criminal investigators to include investigators with the Air Force Office of Special Investigations and the Naval Criminal Investigative Service. Now, Jenna was a judge advocate in the Navy. Jenna, tell us a little bit about your background.
Solari: Okay. After law school I worked for a year for a Federal Appellate Court Judge and after I was done with that I started my active duty time in the Navy. I was a military prosecutor for awhile down at the Naval Air Station in Jacksonville, Florida. After I finished my tour in Jacksonville, I left active duty and became a civilian special agent with NCIS, the Naval Criminal Investigative Service and worked for a year up in the DC field office. After that, I came over to FLETC and that was about a year ago.
Miller: I was a judge advocate in the Marine Corps, I was a prosecutor; defense counsel, staff judge advocate and a military judge. I came to the Legal Division a few years ago and am just having a great time.
In a series of podcasts, we are going to discuss the law surrounding self-incrimination in the military. Jenna, how about focusing our listeners on the type of evidence investigators are looking for here.
Solari: Alright, sure. Well in the contents of self-incrimination, it’s a suspect’s thought process about a crime. The courts call it communicative or testimonial evidence. Now, we’re not talking today about physical evidence, like fingerprints, blood samples, or even voice exemplars. Searches for physical evidence are controlled by the 4th Amendment.
Miller: And, our listeners can learn more about government searches for this physical evidence by listening to a series of podcasts called, “A 4thAmendment Roadmap.” I’ll give the website later. But again, we’re focusing on communicative evidence; a suspect’s thought process about a crime. How might suspects communicate with investigators?
Solari: Well, in a lot of different ways. The suspect might communicate verbally, in writing, or even with gestures. Like for instance shaking his head or nodding in response to a question, or pointing when the interrogator asks him where the crime took place. Now the suspect may confess to a crime, and when I say confess I mean the suspect provides a statement that admits every element of the offense. On the other hand the suspect might make admissions, an admission being an incriminating statement that falls short of admitting guilt completely. So for example, the suspect admits that he touched the murder weapon but still denies being the killer.
Miller: Generally speaking, there are three sources of law surrounding self-incrimination. The first is Article 31b of the Uniform Code of Military Justice. Article 31 is unique to the military. The second source of law is the 5th Amendment and Miranda. Miranda protects everyone’s 5thAmendment right against self-incrimination. Finally, there’s the 6th Amendment, which protects everyone’s rights to counsel. Now we’re going to discuss each one of those sources of law. Let’s begin with Article 31b, which again is unique to the military.
Solari: Alright, well Article 31b, you’re right, protects military members. Article 31b warnings sound kind of like the Miranda warnings you hear on TV shows, with one added element. The suspect’s told what crime he or she is suspected of committing. Also, military members receive the warnings, not only when they’re in custody, like civilians, but anytime they’re officially questioned by a superior who believes they’ve committed a criminal offense. Article 31b warnings are really just an attempt to dispel the inherent compulsion a service member might feel to answer questions during interrogations by military superiors.
Miller: Yea and if anyone has problems understanding why the military has Article 31b rights, they should think about that drill instructor in the movie, Full Metal Jacket.
Solari: Yea.
Miller: You can imagine the DI yelling, “Have you been smoking dope, private?”
Solari: (laughter)
Miller: The private would surely feel compelled to answer.
Solari: I’m sure you’re right. So, that’s a great example. To dispel the inherent compulsion in that scenario the perceived obligation to respond to those questions about a suspected offense, that drill instructor should first warn the private of his Article 31b rights.
Miller: Now Jenna, military doctors are commissioned officers and superior in rank to their enlisted patients. So,
Solari: I know what you’re getting at. Military doctors are superior in rank to their patients; therefore, does a Navy doctor have to read his patient Article 31b warnings before asking the patient something like whether he used a controlled substance over the weekend? The answer’s no since the doctor’s primary purpose in asking that question was presumably to treat the service member, not to gather evidence of crime. So today we’re going to determine when Article 31b rights are required. And, that’s going to require us to answer three questions. Those questions are first, who must give the warnings; second, when must the warnings be provided; and third who exactly must be warned. So, let’s see if you can handle the first question Tim, “who must give the warnings?”
Miller: Well, I don’t know I’m the Marine, (laughter). Read literally; however, Article 31 requires “persons subject to this chapter”, the UCMJ, or Uniform Code of Military Justice to read the rights. Article 31 applies to situations where, because of military rank, duty, or other relationship, there might be a subtle pressure on a suspect to respond to interrogation. That would include the drill instructor in Full Metal Jacket or a military policeman. Air Force Office of Special Investigations or Naval Criminal Investigative Service agents are also agents of the military and they too are required to read suspects Article 31 rights.
Solari: Sure. What about state law enforcement officers?
Miller: Now, state law enforcement officers are not affiliated with the military and are not required to read Article 31 rights to the suspect. Federal agents with no affiliation to the military are not required to read Article 31 rights to suspects. But, I guess we should caveat that.
Solari: We should. If a NCIS agent were to ask an agent with the Georgia Bureau of Investigations, for instance, to interrogate a military suspect or if NCIS actively participated in an interrogation with a GBI agent, Article 31 warnings would be required if the suspect were a military member.
Miller: Now let’s get back to that military doctor examining the enlisted patient.
Solari: Okay, well that will bring us to our second question, “when must the warnings be provided?” Article 31 requires warnings prior to any interrogation about an official law enforcement or disciplinary matter as long as the service member who’s being question would perceive the inquiry as official. Now the military doctor you keep referring to doesn’t appear to be asking questions for a law enforcement or disciplinary purpose. Rather his questions appear to be for the purpose for treating that service member.
Miller: You said Article 31 warnings must be provided prior to interrogation about an official law enforcement or disciplinary inquiry. Interrogation means words or action by the interrogator that is either intended or reasonably likely to illicit an incriminating response. You got any examples you can give to us?
Solari: Sure. Well certainly express questioning like “did you do it?” is interrogation – that’s easy. A sentence doesn’t have to end with a question mark though to be considered interrogation. Really, anything designed to get the suspect to make an incriminating response, even if it’s not a question is considered the functional equivalent of questioning. Telling the suspect an emotional story, for instance, about the victim and the victim’s family, even if it doesn’t end with a question, could be interrogation if it’s designed to get the suspect to make a response. Even showing the suspect a room full of evidence, complete with pictures of the crime scene or the victim could be considered interrogation if the obvious point of doing that was to get the suspect to respond to what you’re showing him.
Miller: And, you also said that the person being interrogated has to perceive the inquiry as being official.
Solari: That’s right. A good example I think is undercover questioning. So let’s suppose an undercover NCIS agent poses as a contract employee and befriends a Marine Corps sergeant suspected of selling drugs. After awhile the undercover agent asks the sergeant if he’ll sell him some dope. Now as far as that sergeant knows this guy isn’t a NCIS agent, he’s just another guy. There’s no reason to feel compelled to talk to him or do anything he asks since the sergeant doesn’t regard him as a superior. So, since the sergeant, the suspect drug dealer, doesn’t perceive this questioning as “official”, 31 warnings aren’t required. Now later on we’re going to talk about Miranda. Miranda and Article 31 have a common purpose. They’re both designed to prevent coercion in a situation where the suspect might feel compelled to answer questions. In the military contents the official questioning by someone known to the service member to be a superior is what creates that coercion and triggers the need to give military suspects those Article 31b warnings.
Miller: So I think it’s fair to say that Article 31 prevents coercion, not deception, deception during undercover questioning.
Solari: That’s right.
Miller: Now let’s do a short review before we answer the last question. Persons superior in rank or position must warn suspects of their Article 31 rights. That would include a NCIS or OSI agent; but not a Georgia state trooper who’s acting on behalf of the State. The warnings must be given before any interrogation that is for an official law enforcement or disciplinary purpose; and, there’s another qualifier there, the suspect must also perceive that questioning as official before warnings are required. Now let’s talk about “Who must be warned?”
Solari: Well any persons subject to the Uniform Code of Military Justice. Article 31 applies to military members suspected of violating the UCMJ. Military members considered a suspect for purposes of Article 31b if the interrogator believes or should reasonably believe the military member committed an offense under the Code. Agents should consider someone a suspect for instance if that person has been directly accused by a witness of committing a crime or if other facts and circumstances reasonably suggest that a particular person had a hand in committing the offense. Simply doing screening interviews though in which investigators are trying to identify someone as a suspect from a whole pool of potential perpetrators or witnesses. Those screening interviews don’t require Article 31b rights.
Miller: Let’s summarize again. So, in short, who must warn of Article 31b rights?
Solari: Any person subject to the UCMJ, which as you mention includes NCIS and OSI agents.
Miller: When must the OSI or NCIS agents warn?
Solari: Prior to any interrogation about an official law enforcement or disciplinary matter when the person to be questioned would perceive it as that official inquiry.
Miller: And, who must be warned?
Solari: Anyone subject to the Code whom the agents suspect or reasonably should suspect has committed a crime. Now importantly that’s true even if the suspect is not in custody.
Miller: Tell us the Article 31b warnings themselves. I know that they’re different than Miranda.
Solari: They are. Again, unlike Miranda, if an NCIS or OSI agent suspects a military member of an offense, the agent has to advise that suspect of the nature of the allegation. We generally call that giving the suspect a frame of reference about the subject of the interrogation. In other words we just let the suspect know what it is we want to talk to him about. This frame of reference should be in plain English. A reasonable person should be able to understand what the interrogator wants to talk about. For example, if the interrogator suspects a Marine of drug use, the interrogator might advise the suspect, “Private Miller, I want to talk to you about smoking marijuana over the weekend.” He shouldn’t say, “I want to talk to you about violating Article 112 alpha.” Because Private Miller probably has no idea what Article 112 alpha is.
Miller: I know a little from experience that the confusion sometimes involves situations where the suspect may have committed multiple offenses or more offenses than just the one the interrogator advises the suspect he’s suspected of committing. It may be that the interrogator doesn’t know all of the offenses. You know for example, Monday morning rolls around and the battalion commander calls up NCIS and reports that a rape has occurred over the weekend in his barracks. NCIS identifies the suspect and comes and advises that suspect, “You are suspected of raping Private Smith yesterday evening.” Now assuming the suspect waives his rights to remain silent and talks to the agent, the suspect might say something like that he and the victim who are 19 years old were drinking together; that they were intoxicated; that he drove the victim back to the barracks; and that they drank more alcohol at the barracks; and, finally, that they had sex. Although the suspect admitted to another, you know he admitted to another offense like under age drinking. The NCIS agent doesn’t have to stop him in the middle of the interview and re-administer Article 31b rights about the under age drinking. It’s enough that the suspect was given the frame of reference, you know the rape that occurred over the weekend at the beginning and the interview is about the circumstances related to that alleged rape. Now I should say this too, that if a suspect made mention that he is smoking marijuana with the victim, the interrogator or the NCIS agent shouldn’t break off on a tangent and start interrogating him about where he got the marijuana.
Solari: Okay, well that makes sense. And that’s the first requirement, telling a suspect what offense we want to ask him about, what we want to talk to him about. Second, the interrogator should advise the suspect of his right to remain silent and third, that any statement he makes may be used against him at trial.
Now people out there may be interested to know that there’s no requirement under Article 31b to tell the suspect he could speak to counsel prior to or during the interrogation. If the suspect is in custody however, Miranda and the 5th Amendment afford the suspect that right - to have a lawyer present. Agents should be mindful then of whether their interrogation takes place in a custodial setting so they could advise the suspect of all applicable rights.
Miller: To interrogate an accused about a suspected offense, the interrogator needs a voluntary, intelligent, and knowing waiver of rights from the accused. There must be an affirmative waiver. What happens when the right type of interrogator does not administer Article 31b warnings?
Solari: Well it’s pretty simple and straight forward. If the rights aren’t administered when they’re required then the suspect’s statements are inadmissible at trial during the government’s case in chief.
Miller: Okay, let’s take a break. When we come back, we’ll talk about Miranda. You can catch more podcasts about federal criminal law and procedures at our website, http://www.fletc.gov/training/programs/legal-division/podcasts