Current through Register Vol. 50, No. 9, September 20, 2024
A. General. Service members suspected of a
violation of the LCMJ shall be advised of their Article 31 rights. A confession
or admission made by such a suspect who has not been advised of his rights may
result in the confession or admission being inadmissible against him
court-martial. It is possible that an accused may still be convicted because of
other evidence of guilt which is admissible .
1. Procedure. The following procedure must be
carefully followed in questioning a suspect to insure that his statements are
admissible in court proceedings (DA Form 3881 Rights Warning Procedures/Waiver
Certificate, See Figure 5.7):
a. Before
asking any questions pertaining to the case, first inform the individual: "You
are suspected of committing the following offense(s) which is (are)
violation(s) of the Louisiana Code of Military Justice. Before I ask you any
questions, you must understand your rights. You have the right to remain
silent. Any statement you make may be used as evidence against you in criminal
or administrative proceedings. You have the right to consult with a lawyer
before being asked any questions and to have the lawyer present with you during
questioning. You may hire a civilian lawyer at no cost to the government or a
military lawyer will be detailed for you at no cost to you. Even if you decide
to answer questions now without having a lawyer present, you may stop answering
questions until you consult with a lawyer."
b. After this statement is made, the suspect
should be asked if he understands his rights. When the investigator is
satisfied that the suspect understands these rights, then the following two
questions should be asked:
(a). "Do you want a
lawyer?" and
(b). "Do you want to
answer any questions or make a statement?"
2. The suspect may indicate that he wishes to
waive his rights to remain silent and to consult with a lawyer. He must waive
these rights freely, knowingly and intelligently. If he does so, he may then be
questioned concerning the offense. If the suspect indicates that he wants to
consult with a lawyer, he should not be questioned until a lawyer is present.
If the suspect indicates that he does not wish to answer questions, he should
not be questioned. In any case, it is essential that the investigator not use a
tone of voice or manner which could lead the suspect to believe that he is
being threatened or which plays down the importance of the warning. If this is
done it may later be held that the suspect's agreement to answer questions was
gained by coercion or improper inducement and his statement would be
inadmissible in a trial by court-martial. It is advisable to have a
disinterested witness present for such advice of rights and suspect statements.
The investigator may decide not to question a suspect if other evidence is
available (DA Form 3881 Rights Warning Procedures/Waiver Certificate, See
Figure 5.7).
B. If the
person being interviewed is not suspected of having committed an offense, but
is merely a witness to the offense or has knowledge of it, there is no legal
requirement to warn him of his rights. In the questioning, the investigator may
begin to suspect that the witness was involved in the offense. This may happen
when it appears that the witness was actually an accomplice or an accessory to
the crime. The investigator should immediately then stop the questioning,
inform the witness of the offense of which he is now suspected, and advise him
of his rights as indicated above.
AUTHORITY NOTE: Promulgated in accordance with
R.S.
29:11(F).
NOTE: (DA Form 3881 Rights Warning Procedures/Waiver
Certificate, See Figure 5.7)
