PART H - THE CONCEPT OF "OFFICIAL" QUESTIONING
The Concept of "Official" Questioning. By its language, Article 31 applies to
persons "subject to this chapter," who interrogate or request a statement from
the accused. In order for the protections of Article 31 to apply, we must have
three things: (1) the individual who is questioned must be a suspect; (2) there
must be an interrogation or a request for a "statement;" and (3) the questioner
must be acting in an official capacity. The first two elements have already
been examined.
1. Not all questioning is defined as "official." Interrogation by CID or MPI
agents would clearly qualify as "official," but so too would the questioning of
a suspect by his superior officers. U.S. v. Souder, 28 CMR (CMA, 1959). It
also includes "a person acting as a knowing agent of a military unit or of a
person subject to the code" (MRE 305(b)1). In U.S. v. Quillen, 27 MJ 312 (CMA,
1988), the court held that an AAFES store detective was acting in an official
capacity.
2. FBI agents, for example are not subject to Article 31 or the UCMJ. The FBI
is an independent federal agency, and the military does not directly or
indirectly control its investigative efforts.
Absent some subterfuge, or
attempt to circumvent the law, FBI agents are not considered to be under the
coverage of Article 31. U.S. v. Holder, 28 CMR 14 (CMA, 1959). This is also
generally true for civilian police unless they are acting as our agents. For
such an agency situation to exist, however, the court must find that the
civilian police are acting "as an instrumentality of the military." This is
not, of course, generally the case. In other words, if the civilian police are
acting at the military's direction, this will trigger Article 31. U.S. v. Aau,
30 CMR 332 (CMA, 1961).
Civilian police, of course, are covered by the
requirements of the Miranda decision.
This may require them to give the
suspect certain warnings (based on Miranda, of course, and not Article 31), if
the subject is in "custody." We will return to the subject of Miranda and the
issue of "custody" shortly.
3. In order to constitute "official" questioning, the suspect must perceive
the encounter to be "an official interrogation," which means that it is
something "other than a business meeting." U.S. v. Wiggins, 13 MJ 811 (AFCMR,
1982). As an example, questioning by an NCO is generally going to be regarded
as "motivated solely by personal considerations." U.S. v. Bartee, 50 CMR 51
(NCMR, 1974). Article 31 warnings, then, are only required "during the course
of an investigation being conducted with some color of officiality." U.S. v.
Trojanowski, 17 CMR 306 (CMA, 1954). The warnings are aimed at "the effect of
superior rank or official position," which create pressure upon the suspect to
confess. Such a situation would not apply where the accused is questioned by a
fellow prisoner. U.S. v. Gibson, 14 CMR 164 (CMA, 1954).
4. In one case, the victim of a larceny confronted the accused.
Since the
victim was accompanied by a CID agent, however, this made the questioning
"official," so the Article 31 warnings were necessary. U.S. v. Josey, 14 CMR
185 (CMA, 1954).
In U.S. v. Woods, 47 CMR 125 (CMA, 1973), a charge of
quarters (CQ) questioned a suspect regarding drug offenses. The court
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