Article 31 Protection
Article 31 protection coincides with the protection granted under the Fifth Amendment. It is a practical
application of the Fifth Amendment to the military. Article 31 protection applies when two things are present:
o
Potential criminal penalty.
o
Oral statements and verbal acts.
Oral Statements
Oral statements may be either an admission or a confession. Remember, admission is a self-incriminating
statement that falls short of a complete acknowledgement of guilt. A confession is a complete acknowledgement
of guilt.
Verbal Act
A verbal act is functionally the same as a statement. When a suspect turns over evidence or points out evidence in
response to a question or order, that is a verbal act. This verbal act is the functional equivalent of a statement.
The exception to protection of Article 31 is when a lawful search is being conducted. For example, a suspect is
being lawfully apprehended. The suspect is ordered to empty his or her pockets. This action is legal and does not
come under the protection of Article 31. A verbal act is only protected when it relates to a testimonial utterance
such as "uh huh" to mean "yes."
When Warnings are Required
One of the key factors you must remember regarding Article 31 is when the warnings are required. Defining
when Article 31 rights should be given is subjective. The courts use both a subjective and objective test when
deciding if the warnings were required. Given the facts and circumstances of a situation, would a reasonable law
enforcement official focus attention on an individual as a possible suspect? Thus, either a subjective or objective
factual situation will require compliance with Article 31.
Suspicion as it Relates to Article 31
Suspicion is an important factor. When someone becomes a suspect in a case, he or she must have Article 31
rights read. It may be necessary to read these rights many times during an investigation.
Witnesses on the other hand do not need their rights read. They are not suspects. If a witness blurts out a
statement that is not a result of questioning, that is called a "spontaneous admission" or "excited utterance."
Spontaneous admissions are admissible in court even though no rights warning was given. When it becomes clear
that a witness may become a suspect, you may want to interrogate the witness. At this point, he or she must be
advised of his or her rights before further interrogating or questioning. If he or she
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