explained that Article 31 "does not require threshold advice in all instances
where one member of the Armed Forces questions another about a crime which he
suspects or knows the other has committed... The ultimate inquiry... is whether
the individual, in line of duty, is acting on behalf of the service or is
motivated solely by personal considerations when he seeks to question one whom
he suspects of an offense." Here the CQ was acting "in discharge of his duties
as CQ" and was "directly engaged in performance of the responsibilities of a
command CQ during a regular tour of duty."
He was, then, "the commander's
representative," and Article 31 warnings were required.
In one case, even
though the MP who questioned the suspect said he was a personal friend, his
questioning was still found to be "official." The issue was whether or not he
acted as an MP on behalf of the Army; the court said that he did. U.S. v.
Beck, 34 CMR 305 (CMA, 1965).
5. In U.S. v. Duga, 10 MJ 206 (CMA, 1981), an Air Force security policeman had
known the accused "for approximately a year and a half, and the two of them had
lived and consorted in the same military dormitory and gone out together during
the evenings." The accused was a former security policeman. After the accused
had been questioned by the OSI (Office of Special Investigations) agents, he
encountered his friend, Airman Byers, an Air Force security police officer.
Airman Byers said that "he was curious about rumors he had heard" and he asked
the accused "what he was up to." It was "a long night" and Byers said that "it
was kind of nice to have someone to talk to." The accused responded that "he
was looking for a place to hide his van because the OSI was looking for it, and
that he still had something in it.'" Byers then asked him "what was the deal
that was going on back when he was on leave?" The accused answered that he had
been caught with a canoe and chain saw that had been stolen from the base.
Byers later went to the OSI and reported what the accused had said to him.
6. At trial, Byers denied that he questioned the accused while acting in an
official capacity, and said that the conversation "was only more or less buddy-
to-buddy talk." He said that OSI had not directed him to talk to the accused,
and said that his purpose was not to get information. Instead, he said he was
speaking "more or less like a friend to a friend... just out of my own
curiosity." He said he was not an OSI informant, but was acting in a personal
capacity, prompted simply by his own curiosity.
7. On appeal, the court had to decide whether the questioning was official.
The purpose of Article 31, it explained, was to counter "the effect of superior
rank or official position upon one subject to military law."
Since such
pressure may make the "asking of a question... the equivalent of a command,"
Article 31 warnings are "a precautionary measure" to deal with the coercion
that is inherent in military discipline and superiority. The protection, then,
"applies only to situations in which, because of military rank, duty, or other
similar relationship, there might be subtle pressure on a suspect to respond to
an inquiry." Accordingly, in such cases, "it is necessary to determine whether
(1) a questioner subject to the code was acting in an official capacity in his
inquiry or only had a personal motivation; and (2) whether the person
questioned perceived that the inquiry involved more
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