ANSWER: I asked him if he was willing to talk to me without an attorney being
present, and he said he was.
Is that all?
Are you sure?
You are positive that is what you told him?
ANSWER: I think so.
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.
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
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.
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