JAG Bulletin Board RESERVE LAW PROGRAM The Judge Advocates General of the Army and Navy have reached an understanding for inter-service training on a reciprocal basis of inactive reserve officerlawyers of their respective services. This will provide new opportunities for training of Naval Reserve Officer attorneys in areas where there are insufficient officers for establishment of Reserve Law Companies. Amplifying details of the program will be published in a subsequent issue of the JAG Journal. ADMINISTRATION DIVISION LEGAL KITS Many Reserve Officers of the Navy and Marine Corps, who are lawyers, are assigned duty in line billets upon graduation from officer candidate training schools. It is anticipated that commands will utilize the legal background of these officers by assigning them collateral duties of a legal nature. In order to aid these officers in the performance of duties assigned, especially where legal reference material is not available, legal kits are being prepared by the Field Services Branch, Office of the Judge Advocate General. These kits will be available on request. The following is a list of change of duty or station orders issued to all officers transferred to or from the Office of the Judge Advocate General and to all Navy law specialists reThe list includes orders issued before gardless of assignment. 25 Oct. 1956. RADM William R. Sheeley, USN, from JAG to COUN- LTJG John F. X. Finn, USN, from COM 6 to COM 3. CDR Charles Hunsicker, USN, from JAG to JAG, West Coast. CDR Richard C. Hunt, USN, from JAG, West Coast to COMSUBCOMNELM/HSA, Naples. CDR John C. Keatts, Jr. USN, from COM 14 to JAG. CDR Leo J. Meads, USN, from CINCFE to JAG, West Coast. CDR Ashton C. Miller, Jr. USN, from COM 14 to COMINPAC. LCDR Edward J. Moloney, USNR, from COMATSPAC to COM 14. CAPT Ralph T. Moloney, USN, from COMSUBCOMNELM/HSA, Naples to USSSO, Rome. LT Thomas J. Moran, USN, from PG Scol, Monterey to DESFLOT 5. CDR William J. McAvoy, USNR, from FLACTS, Sasebo to COM 13. CAPT Edwin H. Nichols, USN, from JAG to PRNC. CDR Robert F. Nuttman, USN, from Armed Forces Staff College, to JAG. CAPT Herbert L. Ogden, USN, from JAG, West Coast to COM 12 (as Chairman, San Francisco Industrial Personnel Security Hearing Board). LCDR Joseph E. Ross, USNR, from COM 3 to SIXTH FLT. LCDR Morris M. Seydel, USN, from JAG to NAS, Jacksonville. CDR Raymond Von Wolkenten, USN, from COMNAVPHIL to NAVACTS, London. CDR J. Russell Verbrycke, III, USN, from JAG to Office of Legislative Liaison. SPECIAL NOTICE COURTS-MARTIAL-GUIDE FOR PRESIDENTS AND MEMBERS (NAVEXOS P-1524) The following statement of the trial counsel was inadvertently omitted from the Routine Trial Guide for a Special Court-Martial contained in the subject publication and should be inserted after line 14, page 20: "TC: No member of the prosecution has acted as investigating officer, law officer, court member, or as a member of the defense in this case, or as counsel for the accused at a pretrial investigation or other proceeding involving the same general matter." A STATEMENTS AND CONFESSIONS A PROBLEM ARISING FROM ARTICLE 31 UNIFORM CODE OF MILITARY JUSTICE CAPTAIN JOE H. MUNSTER, Jr., USN RTICLE 31 OF THE UNIFORM CODE OF MILITARY JUSTICE reads as follows: "ART. 31: Compulsory self-incrimination prohibited. (a) No person subject to this code shall compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him. (b) No person subject to this code shall interrogate, or request any statement from, an accused or person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial. (c) No person subject to this code shall compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade him. (d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement shall be received in evidence against him in a trial by court-martial." 1 Subdivision (a) is essentially the same prohibition as that contained in the Fifth Amendment to the Constitution of the United States. The Court of Military Appeals succinctly stated the import of the subdivision in U. S. v. Eggers: "Undoubtedly it was the intent of Congress in this division of the Article, to secure to persons subject to the Code the same rights secured to those of the civilian community under the Fifth Amendment to the Constitution of the United States-no more and no less." This statement was reiterated in U. S. v. Taylor.2 Subdivision (c) merely restates the provisions of former Article of War 24.3 Subdivision 1.3 USCMA 191, 11 CMR 191. 2. 5 USCMA 178, 17 CMR 178. 3. 41 Stat. 792. (d) is, similarly, a restatement of the standard rule as to voluntariness of statements and confessions and forbids their use in courts-martial where they are involuntary. In addition, Subdivision (d) forbids the use of confessions and statements, otherwise voluntary, if secured in violation of Article 31. None of these particular subdivisions cause much difficulty. They are restatements of familiar principles which have been in existence for years. With Subdivision (b) it is another story. On its face this subdivision is merely a broadening of former Article of War 24 to protect persons suspected of offenses as well as those accused of offenses. It also requires that the person suspected or accused of an offense and questioned by a person subject to the Code, be warned of the nature of the accusation or suspicion and informed that no statement need be made, and, if any statement be made, it may be used against the person making it. The giving of a warning was not required in Army practice prior to the amendment to Article of War 24 in 1948, or in Navy practice prior to the effective date of the Code. Subsequent to the above mentioned amendment of 1948, it was held, in Army practice, that where an accused was questioned by a superior officer in an official capacity the prosecution must show the accused was advised of his rights, or was specifically aware of them," and where the accused was an experienced officer no warning need be given. These cases are no longer applicable. Under Article 31 of the Code, the warning and advice must be given where the person interrogated is suspected or accused of an offense and is questioned by someone subject to the Code, and this is true even though the person questioned is well aware of his rights. Failure to so warn and advise renders the resulting confession or statement inadmissible. These 4. 62 Stat. 631. 5. NC&B, Sec. 181. 6. 80 BR 180, 194; 73 BR 320. 7. 81 BR 356. 8. U. S. v. Williams, 2 USCMA 430, 9 CMR 60. 409579-56 3 JANUARY 1957 requirements of Subdivision (b) are said to be so important, policy wise, as to cause invocation of the doctrine of general prejudice when the requirements are not followed." Article 31, by its express terms, applies to interrogation only by persons subject to the Code. Thus, under Article 31, an accused member of the Armed Services would not have to be warned or advised where questioning was conducted by civilian agents of the Armed Services and complete evasion of the requirements of Subdivision (b), or the entire Article 31, would have been possible simply by having all interrogations conducted by civilian agents. This possibility was recognized by the framers of the Manual for Courts-Martial, 1951, who included a requirement that confessions and statements secured from a person subject to the Code during an official investigation were inadmissible if no warning were given.10 It was stated in explanation of this Manual provision: 66 ** * *. It remains to be considered why Congress limited the force of this legislation (Article 31 (b)) to interrogation, or request by a person subject to this code. Although this question was discussed in the Congressional hearings upon the Uniform Code of Military Justice (see pages 983-993 of the House Hearings), there appears to have been no general agreement on the subject. It may well be that the words 'person subject to this code' in Article 31 (b) were used merely because Congress did not desire in this military code to legislate with respect to policemen who are not subject or could not be made subject to the code * Since it would appear to be both logically and morally indefensible, from the standpoint of making rules for determining the admissibility of confessions and admissions, to require that the accused or suspect be advised of the right against self-incrimination when he is interrogated or requested to make a statement by persons who are subject to the code, but to dispense entirely, and in every case, with such a requirement when he is interrogated or requested to make a statement by persons (who may be military investigators) who are not subject to the code, the text of the Manual has been so phrased that civilian military investigators not subject to the code, and other investigators not subject to the code who are acting in an official capacity, must give a warning in those cases of interrogation in which the accused or suspect 9. U. S. v. Taylor, 5 USCMA 178, 17 CMR 178; U. S. v. Williams, supra, noted; U. S. v. Wilson and Harvey, 2 USCMA 248, 8 CMR 48. 10. 140a, MCM, 1951. The Manual provision commented on does not require a warning if the accused or suspect is aware of his rights. Thus the rulings of the Army boards of review under Article of War 24 12 would appear to be applicable. Similarly, the Manual provision does not require persons not subject to the code to advise an accused or suspect of the nature of the accusation or suspicion. It might appear a gap in the protection afforded an accused existed because of these omissions. Actually such is not the case. Where persons not subject to the code are conducting an interrogation "in furtherance of any military investigation, or in any sense as an instrument of the military, then the duty arises to furnish sound advice concerning the provisions of Article 31." 13 The Manual provision together with the explanation thereof, above quoted, seemed to indicate the Congress did not intend to require a warning where the interrogation was conducted by civilian authorities in furtherance of a civilian investigation. There were decisions to the contrary, however, as two Air Force boards of review took the position the Manual term “official investigation" embraced an investigation conducted by civilian authorities for their own purposes.1 An Army board of review took the contrary position. 15 The conflict was resolved in U. S. v. Grisham,16 holding the "official investigation" mentioned in 140a, MCM, 1951, referred to an official military investigation and no warning was required where the investiga tion was totally civilian in character. In its decision the Court of Military Appeals said: 66* * * The 'official investigation' referred to in paragraph 140a must be taken to mean not only an official inquiry, but as well an official military investigation. Thus, as we have seen, 11. Legal and Legislative Basis, Manual for Courts-Martial, 1951, pp. 215-216. The Manual provision referred to is that portion of 140a, MCM, 1951, reading as follows: re "Also, in case the confession or admission was obtained by interrogation or request during an official investigation (formal or informal) in which the accused was a person accused o suspected of the offense, the statement may not be received in evidence, if affirmative evidence that it was voluntary is quired, unless it is shown that through preliminary warning of the right against self-incrimination, or-if the statement was not obtained in violation of Article 31b-for some other reason the accused was aware of his right not to make the statemen and understood that it might be used as evidence against him. 12. See Notes 6 and 7, above. 13. U. S. v. Grisham, 4 USCMA 694, 16 CMR 268. 14. U. S. v. Bishop and Koch, ACM 9035, 16 CMR 899; U. S. v Wiser, ACM S-5198, 9 CMR 748. 15. U. S. v. Franklin, CM 353954, 8 CMR 513, pet. den., reh. den. 8 CMR 178. 16. Supra, Note 13. While this decision settled the conflict it served to emphasize a problem previously noted in U. S. v. Franklin,18 supra. In this latter case the Board of Review said, "We recognize that under some circumstances an investigation by civilian authorities may become so interwoven with the military as to become a joint venture so that the entire proceedings become military in nature." The problem thus becomes one of determining, from the circumstances involved, whether a civilian investigation has taken on the nature of a military investigation so as to require an Article 31 (b) warning. Normally it would appear that investigations conducted by city, county and state officials do not necessarily become military investigations even though military agents are present, where the interrogation is instigated and conducted by the agents of the civil government.19 The problem becomes more complicated, however, where civilian investigative units of the Federal government are involved. In 1955 the Secretary of the Navy announced a memorandum of understanding between the Department of Justice and the Department of Defense relating to the investigation and prosecution of crimes over which the two Departments had concurrent jurisdiction.20 The jurisdictional field of the military and of the Federal Bureau of Investigation was delineated. It was specifically stated that in those areas within the investigative jurisdiction of the Federal Bureau of Investigation, that organization must be notified and may, at its option as directed by the Department of Justice, take charge of the investigation even to the complete exclusion of military agents. If the resulting investigation leads to prosecution by the Federal District Attorney there is no problem as the requirements of Article 31 (b) do not apply to Federal Courts. In many instances, however, the Federal District Attorney does not desire to 17. 16 CMR 268, 271. 18. Supra, Note 15. 19. U. S. v. Grisham, supra, and U. S. v. Franklin, supra. 20. SECNAVINST. 6820.2 of 20 October 1955. prosecute and the military personnel involved are returned to the military for such disciplinary action as the military authorities may deem appropriate. What is the situation under such circumstances? Was the investigation so closely interwoven with the military as to become a joint venture? Did the Federal Bureau of Investigation conduct the interrogation "in furtherance of any military investigation or in any sense as an instrumentality of the military?" The admissibility of any confession or statement secured in the course of an investigation hinges upon the answers to the above questions where no Article 31 (b) warning is given. In such circumstances an accused might well contend the Federal Bureau of Investigation had conducted the investigation for the military, even though the investigatory jurisdiction was exclusive under the memorandum of understanding. Such a contention might be even more effective where other governmental investigative units, such as postal inspection, Treasury agents, etc., were brought into an investigation by military authorities, for no memorandum of understanding or express delineation of investigative jurisdiction exists as to these latter units. The Court of Military Appeals in the Grisham case, supra, stated it would measure the facts of that case against the yardstick it had adopted, the yardstick apparently being the language quoted therefrom.21 The rule thus seems to be that each case will be considered on its own facts. In the absence of an Article 31 (b) warning, therefore, there can be no certainty any statement or confession secured under the circumstances herein outlined will be admissible, a situation which might result in failure of the Government's case in a military trial. The solution to the problem seems relatively simple. Normally, all investigative units of the Federal Government give some type of warning prior to interrogating a suspect. The typical non-military type of warning is substantially that of Article 31 (b) in all respects but one; the person interrogated is usually not informed of the offense of which he is suspected or accused. The inclusion of this portion of the Article 31 (b) warning should not prove onerous to the non-military governmental investigative units. It does not appear to have handicapped civilian agents of the Office of the Naval Intelligence or of the C. I. D. These non-military investigators need not, however, give the Article 31 (b) warning themselves. It is suffi 21. Supra, Note 13. |