officer, or NCO involved in the case. When finished, you will be prepared to
question a suspect and obtain a statement that will be admissible in evidence
at a trial by court-martial.
PART B - THE ORIGIN OF THE PROCEDURAL PROTECTIONS
The Origin of the Procedural Protections. Before examining the specific rights
of the accused, we shall take a moment and explain the basic origin of those
procedural protections.
"The prohibitions of Article 31 and the Fifth
Amendment against coerced confessions are based upon the concept that
involuntary statements must be excluded because of their inherent potential for
unreliability." U.S. v. Lausin, 18 MJ 711 (ACMR, 1984).
1. The Fifth Amendment to the U.S. Constitution simply states: "...nor shall
(he) be compelled in any criminal case to be a witness against himself."
Article 31, UCMJ, states: "No person subject to this Chapter may compel any
person to incriminate himself or to answer any question the answer to which may
tend to incriminate him." Article 31b, UCMJ, more specifically states that "no
person subject to this Chapter may interrogate, or request any statement from
an accused or a person suspected of an offense without first informing him of
the nature of the accusation and advising him that he does not have to make any
statement regarding the offense of which he is accused or suspected and that
any statement made by him may be used as evidence against him in a trial by
court-martial."
2. Article 31b, then, requires that a suspect be advised of three things: (1)
the nature of the accusation; (2) the right to remain silent; and (3) that any
statement he makes may be used as evidence against him in a trial by court-
martial.
As you can see, the right to counsel is not, therefore, found in
Article 31. Instead, the right to counsel at an interrogation was recognized
by the U.S. Supreme Court in its decision in Miranda v. Arizona, 384 U.S. 436
16LEd2d694 86 SCt 1602 (1966). Miranda was adopted by the military in U.S. v.
Tempia, 37 CMR 249 (1967). In Tempia the U.S. Court of Military Appeals ruled
that Miranda "lays down concrete rules which are to govern all criminal
interrogations by federal or state authorities, military or civilian, if
resulting statements are to be used in trials commencing on or after June 13,
1966."
The military, then, adopted the Miranda requirements as a
constitutional requirement. U.S. v. Clark, 48 CMR 77, (CMA, 1973).
3. We will return to the specific rights covered by both Article 31, UCMJ, and
the right to counsel.
For now, understand that the right to counsel is not
contained in Article 31. It is, nonetheless, a basic right of the accused that
must be both understood and observed.
PART C - THE MOTION TO SUPPRESS -- LITIGATING THE ISSUE AT TRIAL
The Motion to Suppress -- Litigating the Issue at Trial. We will examine the
exclusionary rule itself later. For now, understand that if a confession is
unlawfully obtained, the accused may successfully move to have it excluded from
court. In other words, he will try to have it suppressed, or kept out of
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