persons involved in a case; to protect yourself from charges that might arise from
your own misconduct; and make sure that the information you develop is complete and
will be admissible as evidence.
In any case of doubt, you must seek advice from
the Staff Judge Advocate (SJA).
5.
Rights of a Person Being Questioned.
a. As an SA, about to question a person suspected or accused of a crime, you
must be sure that his rights are protected, per Article 31, UCMJ, and/or the Fifth
Amendment to the U.S. Constitution. He is also entitled to counsel, as provided
by the Sixth Amendment to the Constitution.
b. Before a statement can be used against an accused in court, it must be
shown that his rights were protected, that the statement was freely and voluntarily
given, that he was warned of his rights, that he understood the warning, and that
he waived those rights. See Figures 1-2 and 1-3 for completed DA Form 3881, front
and back.
(1) If the accused or suspect indicates that he wishes to consult with a
lawyer, he must not be questioned until a lawyer is present.
Likewise, if he
indicates he does not wish to be questioned and he has no lawyer present, he must
not be questioned.
(2) It is not advisable to read all of Article 31 and the Fifth Amendment
to the suspect or the accused before questioning.
The warning is a simple
restatement of the rights which he must be told before being asked to waive his
rights.
c. The rights warning must be given ONLY to persons suspected or accused of
an offense. There is no obligation to advise complainants, victims, or witnesses
of their rights unless you believe that they may have committed an offense. It is
a poor policy to advise persons other than suspects of their rights as it may tend
to restrict the free flow of information. However, if during their interview, they
become a suspect in ANY criminal offense, you must stop the questioning and give
the rights warning.
d. Only those persons subject to the UCMJ will be warned of their rights
under Article 31. All other persons will be warned of their rights as provided by
the Fifth and Sixth Amendments to the Constitution.
6.
Persons Commonly Interviewed and Interrogated. As an SA, you may question many
types of persons, including victims, witnesses, sources, complainants, and
accusers.
a. Victims. A victim is normally interviewed first to develop the facts of
an incident.
This may take place in a hospital, at the home of the victim, or
under conditions not of your choosing.
A victim is not always reliable,
cooperative, or available.
This is sometimes due to a fear of some form of
retaliation, a state of mental or physical shock, the possible involvement of
relatives or friends, or a fear of publicity. He may be interviewed several times
before all the facts are correctly disclosed to you.
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