(CMA, 1993), accused's section leader, and friend, was required to escort him
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).
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