accused or suspected and that any statement made by him may be used in evidence
against him in a trial by court-martial.
(3) No person subject to this Code shall compel any person to make a
statement or produce evidence before any military tribunal if the statement or
evidence is not material to the issue and may tend to degrade him.
(4) 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 a trial by court-martial.
UCMJ, Article 98
"Any person subject to this code who...knowingly and intentionally fails to
enforce or comply with any provision of this code regulating the proceedings
before, during, or after trial of an accused...shall be punished as a court-martial
may direct."
b. Prior to the questioning of any person, you should introduce and identify
yourself. Present your badge and credentials. A person suspected or accused of an
offense must be informed of this, and his rights as outlined above.
If he is
military, he must be informed of his rights per Article 31, UCMJ, and his right to
counsel. A civilian suspect is protected under the Fifth and Sixth Amendments to
the U.S. Constitution. He must be informed of their provisions. Whether or not a
person is a suspect will be determined by an examination of the facts of the case.
Persons other than a suspect or accused should only be informed of the general
nature of the investigation; they do not have to be advised of their rights.
During the introduction you must take care not to divulge your knowledge of the
case. Prior to advising a suspect of his legal rights ascertain from the suspect
if he has been advised of his legal rights within the last 30 days and consulted
with legal counsel.
If the answer is yes, then you must consult with JAG before
continuing the interview. If the answer is no, continue the interview.
NOTE: Review the Rights and Warning Procedure on DA Form 3881 (Figure 3-2) (back)
and then pay close attention to the steps of completing the Waiver Certificate
(Figure 3-1).
c. Once a suspect has been warned of his rights, a statement cannot be
obtained until he waives his rights to remain silent and consents to being
questioned. If a suspect orally consents to being questioned but refuses to sign
the waiver, you may question him only after noting on the Waiver Certificate (DA
Form 3881) that he:
(1) Has stated he understands his rights and does not want a lawyer.
(2) Wants to discuss the offense under investigation and refuses to sign
the waiver certificate.
3-3
MP1016
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