2008 edition - Fort Sam Houston - U.S. Army

App. 22, M.R.E. 304(h)(3) APPENDIX 22
e.g., Mil. R. Evid. 312. Any such refusal may be prosecuted
separately for violation of an order.
Rule 305 Warnings About Rights
(a) General Rule. Rule 305(a) makes statements obtained in violation
of Rule 305, e.g., statements obtained in violation of Article
31(b) and the right to counsel, involuntary within the meaning
of Rule 304. This approach eliminates any distinction between
statements obtained in violation of the common law voluntariness
doctrine (which is, in any event, included within Article 31(d) and
those statements obtained in violation, for example, of Miranda
(Miranda v. Arizona, 384 U.S. 435 (1966) warning requirements.
This is consistent with the approach taken in the 1969 Manual,
e.g., Para. 140 a(2).
(b) Definitions.
(1) Persons subject to the Uniform Code of Military Justice.
Rule 305(b)(1) makes it clear that under certain conditions a
civilian may be a “person subject to the Uniform Code of Military
Justice” for purposes of warning requirements, and would be
required to give Article 31(b) (Rule 305(c)) warnings. See, generally,
United States v. Penn, 18 U.S.C.M.A. 194, 39 C.M.R. 194
(1969). Consequently civilian members of the law enforcement
agencies of the Armed Forces, e.g., the Naval Investigative Service
and the Air Force Office of Special Investigations, will have
to give Article 31 (Rule 305(c)) warnings. This provision is taken
in substance from Para. 140 a(2) of the 1969 Manual.
(2) Interrogation. Rule 305(b)(2) defines interrogation to include
the situation in which an incriminating response is either
sought or is a reasonable consequence of such questioning. The
definition is expressly not a limited one and interrogation thus
includes more than the putting of questions to an individual. See
e.g., Brewer v. Williams, 430 U.S. 387 (1977).
The Rule does not specifically deal with the situation in which
an “innocent” question is addressed to a suspect and results unexpectedly
in an incriminating response which could not have been
foreseen. This legislative history and the cases are unclear as to
w h e t h e r A r t i c l e 3 1 a l l o w s n o n i n c r i m i n a t i n g q u e s t i o n i n g . S e e
Lederer, Rights, Warnings in the Armed Services, 72 Mil. L. Rev.
1 , 3 2 - 3 3 ( 1 9 7 6 ) , a n d t h e i s s u e i s l e f t o p e n f o r f u r t h e r
development.
(c) Warnings concerning the accusation, right to remain silent,
and use of statement. Rule 305(c) basically requires that those
persons who are required by statute to give Article 31(b) warnings
give such warnings. The Rule refrains from specifying who
must give such warnings in view of the unsettled nature of the
case law in the area.
It was not the intent of the Committee to adopt any particular
interpretation of Article 31(b) insofar as who must give warnings
except as provided in Rule 305(b)(1) and the Rule explicitly
defers to Article 31 for the purpose of determining who must give
warnings. The Committee recognized that numerous decisions of
the Court of Military Appeals and its subordinate courts have
dealt with this issue. These courts have rejected literal application
of Article 31(b), but have not arrived at a conclusive rule. See
e.g., United States v. Dohle, 1 M.J. 223 (C.M.A. 1975). The
Committee was of the opinion, however, that both Rule 305(c)
and Article 31(b) should be construed at a minimum, and in
compliance with numerous cases, as requiring warnings by those
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personnel acting in an official disciplinary or law enforcement
capacity. Decisions such as United States v. French, 25 C.M.R.
851 (A.F.B.R. 1958), aff’d in relevant part, 10 U.S.C.M.A. 171,
27 C.M.R. 245 (1959) (undercover agent) are not affected by the
Rule.
Spontaneous or volunteered statements do not require warnings
under Rule 305. The fact that a person may have known of his or
her rights under the Rule is of no importance if warnings were
required but not given.
Normally, neither a witness nor an accused need to be warned
under any part of this Rule when taking the stand to testify at a
trial by court-martial. See, however, Rule 801(b)(2).
The Rule requires in Rule 305(c)(2) that the accused or suspect
be advised that he or she has the “right to remain silent” rather
than the statutory Article 31(b) warning which is limited to silence
on matters relevant to the underlying offense. The new
language was inserted upon the suggestion of the Department of
Justice in order to provide clear advice to the accused as to the
absolute right to remain silent. See Miranda v. Arizona, 384 U.S.
436 (1966).
(d) Counsel rights and warnings. Rule 305(d) provides the basic
right to counsel at interrogations and requires that an accused or
suspect entitled to counsel at an interrogation be warned of that
fact. The Rule restates the basic counsel entitlement for custodial
interrogations found in both Para. 140 c(2), MCM, 1969 (Rev.),
and United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249
(1967), and recognizes that the right to counsel attaches after
certain procedural steps have taken place.
(1) General rule. Rule 305(d)(1) makes it clear that the right to
counsel only attaches to an interrogation in which an individual’s
Fifth Amendment privilege against self-incrimination is involved.
This is a direct result of the different coverages of the statutory
and constitutional privileges. The Fifth Amendment to the Constitution
of the United States is the underpinning of the Supreme
Court’s decision in Miranda v. Arizona, 384 U.S. 436 (1966)
which is in turn the origin of the military right to counsel at an
interrogation. United States v. Tempia, 16 U.S.C.M.A. 629, 37
C.M.R. 249 (1967). Article 31, on the other hand, does not provide
any right to counsel at an interrogation; but see United States
v. McOmber, 1 M.J. 380 (C.M.A. 1976). Consequently, interrogations
which involve only the Article 31 privilege against selfincrimination
do not include a right to counsel. Under present law
such interrogations include requests for voice and handwriting
samples and perhaps request for bodily fluids. Compare United
States v.Dionivio, 410 U.S. 1 (1973); United States v. Mara, 410
U . S . 1 9 ( 1 9 7 3 ) ; a n d S c h m e r b e r v . C a l i f o r n i a , 3 8 4 U . S . 7 5 7
( 1 9 6 7 ) w i t h U n i t e d S t a t e s v . W h i t e , 1 7 U . S . C . M . A . 2 1 1 , 3 8
C.M.R. 9 (1967); United States v. Greer, 3 U.S.C.M.A. 576, 13
C.M.R. 132 (1953); and United States v. Ruiz, 23 U.S.C.M.A.
181, 48 C.M.R. 797 (1974). Rule 305(d)(1) requires that an individual
who is entitled to counsel under the Rule be advised of the
nature of that right before an interrogation involving evidence of
a testimonial or communicative nature within the meaning of the
Fifth Amendment (an interrogation as defined in Rule 305(d)(2)
and modified in this case by Rule 305(d)(1)) may lawfully proceed.
Although the Rule does not specifically require any particular
wording or format for the right to counsel warning, reasonable
specificity is required. At a minimum, the right to counsel warning
must include the following substantive matter: