PART J - ADVISING A SUSPECT OF HIS RIGHTS
Advising a Suspect of His Rights. As we have seen, a suspect must be advised
of his rights before he can be interrogated. Remember, there are rights under
both Article 31 and there is a right to counsel under Miranda. Article 31, you
will recall, requires advice as to the nature of the accusation, that the
suspect has the right to remain silent, and that anything the suspect says may
be used against him at trial. If there is "custodial interrogation," then the
right to counsel also applies, requiring additional warnings.
1. This does not mandate a verbatim recital of the exact wording of the
Miranda decision. Such rigidity is not required. The exact wording or order
of the warnings need not exactly parrot the language of Miranda; rather, the
appellate courts will look to the substance of the warnings given to the
suspect. California v. Prysock, 453 US 355 69 L.Ed.2d 696, 101 SCt 2806 (1981)
and Duckworth v. Eagen, 492 US 195 106LEd2d 166 109 S.Ct.2875 (1989). Still,
deviating, or straying, from the wording of Miranda may be risky, so you must
be very careful. In one case, for example, the suspect was told that she could
"have an attorney appointed to represent you when you first appear before the
U.S. Commissioner or the court." This was insufficient, as it did not clearly
explain the right to counsel at the interrogation. U.S. v. Garcia, 431 F.2D
134 (9th Circuit, 1970). Similarly, if you stray from the precise wording of
the Article 31, you are also taking a risk. You will, of course, remember that
Article 31 grants the suspect a right to remain silent.
Simply telling him
that he need not incriminate himself; however, is not enough.
U.S. v.
Williams, 9 CMR 60 (CMA, 1953). Also, telling a suspect that he has a right not
to make "any statement in writing" is insufficient. U.S. v. Murray, 11 CMR 495
(ABR, 1953). In other words, you need not recite the Miranda decision word-
for-word.
Be careful, however, since if you stray too far, you may wind up
with a defective rights advisement and an inadmissible confession.
2. When you advise a suspect of his rights, the simplest way is to simply read
off of a Rights Warning Procedure/Waiver Certificate (DA Form 3881) or off of a
"Miranda Card" (GTA 19-6-6).
Both are reproduced at Figures 1 and 2.
Both
include coverage of the suspect's rights under Article 31 as well as the right
to counsel. By using the form or card, you will be sure to include all of the
necessary advice to the suspect, and will not run the risk of leaving something
out. Also, it will be far easier for you (and the government) to establish a
valid waiver of the suspect's rights.
If you use the DA Form 3881, for
example, it can be introduced into evidence at trial.
MP1020
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