Rights Warnings in the Military: An Article 31(b) Update

I. INTRODUCTION

On 5 May 1985, Article 31 of the Uniform Code of Military Justice IUCMJI celebrated its thirtyfifth anniversary as the cornerstone of the protection against compelled self-incrimination in the military.' The history of this provision has been an interesting-albeit complex-one. reflecting an intense effort to ensure the fairness of military

For the past three and onehalf decades, Article 31 has provided the following mandate to the armed services:

Art. 31. Compulsory self.incrimination prohibited

(a) No person subject to this [code] may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.

(bl No person subject to this [code] may interrogate, or request any statement from, an accused or a person 'Judge Advocate General's Corps. United States Army Currently amigned 88 a responsible attorney m the MlLtuy Personnel Law Branch. Admvlistrative LawDiviaon. Office af The Judge Advocate General, 1983-preaent. Formerly aiaigned as Attorney-Advmor to the Assistant General Counsel for Legal Couniel, Office of the Secretary of Defense, 1983.1986 Officer.m.Charge, Gelnhsusen Legd Center, Office of the Staff Jvdn Advaaw, 3d Armored Divison. 1982.83. Tnal Counael, Hanau Legal Center Ofhee of the Staff Judge Advaate, 3d Armored Dwi8mn. 1982: Defenre Counsel, U 5. Army Tnal Defense Service. Europe, with duty at Hanau Legal Center, 198142. J D Imnth honoral, Univeraty of Oklahoma, 1977 Completed 94th Army Judge Advocate Offieer Basic Course. 1980 Author of Opming Statement An Opportunity far Effaehue Defanee Aduoeaey, The Army Lawyer. Sep 1986. at 10, Rdabiliiofiue Pofennol of the Accused. Ham the Floodgatas B8.n Oprnrd on Senfancing*. 16 The Advmafs 75 119841, MRE 4Wb) A Care Study in "Whodunit?" 16 The Advaeste 51 119S41: ?he Pummetws of Judicial Conduct During an Oklahoma Jury Tml of Y Cnmind Defendant. 53 Okla. B. J 1307 119321, Constitunond L a w Subalntive Due Pmeerr end the Incompetent Organ Donor. 33 Okls L. Rev. 126 11830l. Consnfviianol Low. A Conatitutiond Andyns oi the NPU Okbhorno Abariian Sf~tute. 32 Okla. L.

Rev

13s 119791 Members of the bars of the United States Supreme Court, Uruted States Court of Appsds for the Tenth Circuit. United Ststea C o w of Mllituy Appeals, and the State of Oklahoma.

The Uniform Code of MiMary Juatice 10 U.S.C 49 801.940 119821 [hereinafter UCMJ] wm enacted on 5 May 1950. Pub. L. Na 81-60B. 64 SLaf. 11s 119501 Smce its enactment, AN& 31, 10 US.C 5 831, has newr been changed m either form Or content.

2See Lederer. Right8 Warnings an the Armed Services. 72 MJ. L Rev. 1, 2.9

119761.

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.

(c1 KO person subject to this [code] may 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.

(dl No Statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by courtmartial.

Between 1951 and 1975, military court8 struggled to find the proper scope and effect of this Article, particularly with regard to subsection lb1.3 Since 1915, the Court of Military Appeals and the courts of military review have continued to papple with the intricacies of the Article 31(bJ protection. This article will review military decisions of the past ten years that have interpreted Article 31(b), articulate current guidelines utilized by military COUI~S,~and offer exampies of legislative, executive, and judicial actions that may improve ths codal privilege for the future.

11. THE REQUIREMENTS OF ARTICLE 31fb)

Any analysis of the types of problems confronting judicial attempts to interpret Article 31(b) must begin with the langvage of subsection Ibl itself. Professor Robert Meguire created the following matrix reflecting the four basic elements...

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