7. This is similar to what happened in U.S. v. Davis, 24 CMR 6 (CMA, 1957).
The accused was suspected of desertion, but the investigator referred to his
activities "from the time he went AWOL." The court explained that the advice
regarding the nature of the accusation "need not be spelled out with the
particularity of a legally sufficient specification; it is enough if, from what
is said and done, that the accused knows the general nature of the charge."
Here, then, "the accused was clearly oriented" to the desertion offense. The
standard is that the questioner's advice "should illuminate the nature of the
suspected offense with such certainty as the information known to the agent
permits."
Again, this only requires that the suspect be "oriented by his
interrogator as to the incident under inquiry." U.S. v. Nitschke, 31 CMR 75
(CMA, 1961).
8. Contrast the above with U.S. v. Johnson, 43 CMR 160 (CMA, 1971). There,
the accused left his unit in South Vietnam and proceeded into Laos.
He was
charged with attempting to contact the Viet Cong for the purpose of discussing
the subject of their moral responsibilities to God and their fellow men. When
questioned, however, the investigator only advised him that he was suspected of
desertion, and not of intentionally attempting to hold intercourse with the
enemy under Article 104, UCMJ. The court held that the investigator knew of
the facts and did, in fact, suspect the accused of this offense.
It also
concluded that when someone is suspected of attempted intercourse with the
enemy, warning him that he is suspected of desertion is not sufficient. The
investigator was not required to know the precise article of the UCMJ that was
involved. Again, it is sufficient "if the accused is made aware of the general
nature of the allegations involved."
In this case, it would have been
sufficient to have drawn the suspect's attention to contacting the enemy,
without reference to the technical term of "holding intercourse with the
enemy."
9. As you can see, an accused is frequently suspected of more than one
offense. Such was the case in U.S. v. Quintana, 5 MJ 484 (CMA, 1978). The
accused was informed that he was suspected of the offense of larceny of a
ship's store funds. The investigator, however, also suspected the accused of
having earlier committed the offense of wrongful appropriation from the same
funds. The court held, however, that the advice "clearly oriented him to the
fact that misuse of the ship's store fund was the object of the investigation.
The appellant's disclosure of incidents of misuse over more than that mentioned
by the agent was within the frame of reference."
10. Contrast the above with U.S. v. Willeford, 5 MJ 634 (AFCMR, 1978).
The
accused was suspected of rape. This was held to be sufficient to also orient
him to the "closely related" offenses of unlawful entry and indecent acts with
the victim. The agent did not, however, advise him that he was also suspected
of housebreaking and indecent exposure involving a second, unrelated, victim.
The court, therefore, concluded that the advice concerning the first incident
was not sufficient to orient the accused to the second incident.
Before
questioning the accused regarding this second incident, then, the agent should
have advised him that he was suspected of the additional offenses.
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