would, then, have been sufficient to have drawn the suspect's attention to the
taking of the automobile, without reference to the technical terms "larceny" or
"wrongful appropriation." The court concluded that "it is obvious that asking
an accused what he has done over a three-day period does not inform him of the
nature of the accusation which is being investigated."
4. Remember, the purpose of this requirement "is to orient him about the
accusation so he can intelligently refuse to answer any question concerning
it." U.S. v. Johnson, 19 CMR 91 (CMA, 1955). The warning "must include the
area of suspicion and sufficiently orient the accused toward the circumstances
surrounding the event." U.S. v. Heulsman, 27 MJ 511 (ACMR 1988). In another
case, the accused was suspected of the offense of assault with the intent to
commit rape. The accused had abducted the victim in a vehicle, which he had
wrongfully taken. The investigator advised the suspect that he was suspected
of the assault offense, but did not mention the offense of wrongful
appropriation of the vehicle. The court explained that "prior to the time the
accused made his statement, the investigator did not know of the second
offense." It, therefore, concluded: "It is not always possible to know all of
the offenses which might be involved from a given state of facts, but it is
necessary that one suspected of a crime know generally the subject of the
inquiry. This puts him on notice of the purpose of the questioning... Here,
without compulsion of any kind, he related his version of the assault and
extended his statement to include the misappropriation. The knowledge of that
offense was gained from the accused's statement, and the failure of the
investigator to anticipate it and warn the accused is immaterial to the
admission of the statement."
U.S. v. O'Brien, 12 CMR 81 (CMA, 1953).
Remember, "if the examiner is without knowledge or suspicion that a particular
offense has been committed by the person to be questioned, he cannot provide
the preliminary advice required by Article 31." U.S. v. Davis, 24 CMR 6 (CMA,
1957).
5. U.S. v. Rice, 29 CMR 340 (CMA, 1960), involved a scheme in which a finance
clerk deliberately overpaid another individual. The investigator advised the
suspect that he was "investigating unauthorized payments of pay and
allowances." The court held that the purpose of the advice "is to orient him
to the transaction or incident in which he is allegedly involved," and that the
accused here "knew the nature of the transaction" even though the investigator
did not use the technical term "larceny."
6. U.S. v. Perry, 46 CMR 636 (ACMR, 1972), the accused was suspected of
detonating a claymore mine in the NCO billets. The suspect was told that he
was suspected of the offense of '"aggravated assault," but not attempted
murder.
The investigator claimed that he honestly thought that aggravated
assault was the proper charge. The accused, however, argued that he was not
sufficiently advised of the nature of the accusation against him. The court
ruled that the investigator may have "understated the potential gravity" of the
offense, but that this did not violate Article 31.
The reason was that the
accused "knew precisely" what was being investigated -- the detonation of the
mine in the billets. An investigator must not, however, deliberately and in
bad faith understate the offense under investigation, as this could result in
suppression of the confession.
MP1020
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