conviction and punishment for his crimes.
The errors
of the criminal
investigator, officer, or NCO, may wind up providing an
unnecessary (and
undeserved) windfall to the accused. Avoiding conviction, he
may return to the
community to commit more crimes. That community, of course,
is our community.
It is to the avoidance of such an unfortunate outcome that
this subcourse is
directed.
PART D - ARTICLE 31b: THE NATURE OF THE ACCUSATION
Article 31b: The Nature of the Accusation. Article 31b, UCMJ, as we have seen,
requires that a suspect be advised of three things.
Notice of the right to
remain silent and that any statement made may be used against him in a trial by
court-martial are fairly straight-forward. Notice regarding the "nature of the
accusation," however, has produced some confusion and litigation.
It is
important, therefore, to take a close look at just what this means.
1. Prior to questioning, "all military suspects or accused persons must be
given a proper warning of their rights in accordance with Article 31, UCMJ (AR
195-2, paragraph 3-18). The three warnings required by Article 31b are also
stated at RCM 305c.
2. In one case, an investigator apprehended the accused for AWOL, and also
suspected him of stealing a car. The investigator, however, did not tell the
accused that he suspected him of the theft, but simply said "that I was
interested in his activities over a period of time from the 29th of October
until the 31st, inasmuch as I was interested in what his activities were from
the time he departed the base until he was apprehended."
The investigator
admitted that he knew the taking of a car was a "separate and distinct" offense
from the AWOL, but said he felt that the general inquiry into the accused's
behavior during the absence was sufficient advice regarding the larceny
offense. On appeal, the court held that this advice was clearly insufficient.
The investigator believed the accused had stolen the car and questioned him
about it, but failed to advise him of the nature of the accusation. This had
the effect of depriving the suspect "of any meaningful choice concerning
whether to speak or remain silent." U.S. v. Reynolds, 37 CMR (CMA, 1966).
3. The court explained that simply drawing the suspect's attention to a
general period of time, and having him discuss all of his activities, is not
enough. The purpose of the requirement "seems clearly to have been designed so
to orient an accused or suspect as to allow intelligently to weigh the
consequences of responding to an investigator's inquiries."
It "is not
necessary to spell out the details of the accused's alleged misconduct with
technical nicety in order to adequately inform him of the nature of the charge
being investigated... It suffices if the accused is made aware of the general
nature of the allegations involved."
Stated another way, the law does not
expect a police officer to use the precision of an attorney in informing the
suspect of the subject matter of the investigation.
The requirement is only
that the suspect be advised of the NATURE of the accusation, "not that it be
spelled out with the particularity of a legally sufficient specification." It
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