rights under Article 31." The admissions made by the suspect were in response
to specific questions that were asked by the informant.
15. The court first held that the questions were not asked out of the
informant's idle curiosity.
Also, the informant was not acting in a purely
personal capacity.
It explained that "the Article 31 requirement does not
apply to an undercover agent who merely engages in a casual conversation with
an unwary suspect."
There is, the court explained, no compulsion in such a
situation.
Here, however, the informant "did not engage the accused in
ordinary conversation."
Instead, he asked specific questions "which were
calculated to evoke incriminating responses from an accused... and, of utmost
significance, the undercover informant's questions which evoked incriminating
responses were propounded on specific instructions from OSI."
The court
concluded that "the sending of (the informant) to accomplish precisely that
which the OSI could not personally do rendered (his) conduct official for
purposes of Article 31."
In other words, the courts will accommodate the
interests of law enforcement, but do not try to stretch the informant exception
too far. However, the decision in Johnston must be considered in light of the
Supreme Court's recent decision in Illinois v. Perkins, 496US 292, 110 S.Ct.
2394 110LEd2d 243 (1990). In Perkins, civilian police suspected the accused --
already in jail on unrelated charges -- of murder. An undercover informant was
placed in the accused's cell. He questioned the accused about the murder. The
accused made incriminating remarks which were used to convict him. All of the
lower courts found the statements inadmissible; however, the Supreme Court
ruled the statements were admissible because there was no "police-dominated
atmosphere or compulsion." The Court relied on the absence of any coercion and
further stated that Miranda "does not forbid mere strategic deception by taking
advantage of a suspect's misplaced trust."
Finally, let's consider whether medical personnel and social workers are
required to inform a suspect of Article 31 rights when they ask questions for
purposes of medical treatment.
16. Medical personnel and social workers are not required to inform a suspect
of Article 31 rights as long as the questions are asked for purposes of medical
treatment not law enforcement. Two recent CMA cases address this issue. In
U.S. v. Bowerman, 39 MJ 219 (CMA, 1994), an Army doctor was not required to
inform accused of Article 31 rights when questioning about injuries to a child,
even if doctor thought that child abuse was a distinct possibility.
The
doctor's purpose was medical diagnosis, not questioning for an official law
enforcement/disciplinary purpose.
Similarly, in U.S. v. Raymond, 38 MJ 136
(CMA, 1993), a social worker, subject to AR 608-18's reporting requirements,
was not acting as an investigative agent of law enforcement when he counseled
the accused with full knowledge that the accused was- pending charges for child
sexual abuse. CMA also ruled that health professionals engaged in treatment do
not have a duty to provide Article 31(b) warnings. Please note that even in
cases of self-referral, R 608-18 does not create a limited use policy which
prevents prosecution of child abusers. It must be noted, however, that under
MRE 803(4), the burden of establishing the medical diagnosis or treatment
exception is firmly placed upon the government.
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