Triggering the warning requirement

  1. bestmilitarydefensedefenseattorneys9.51.12PMStatutory requirement. a. “No person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing . . . .” Article 31(b). b. The phrasing of Article 31(b) supplies a framework for analyzing situations which may trigger the Article 31 warning requirement.5 Beyond consideration of the content of the warning, the following questions must be considered:
    1. Who must warn?
    2. When must the warning be provided?
    3. Who must be warned?
  2. Who must warn? a. The literal language of Article 31(b) seems to require warnings during any criminal interrogation of a suspect/accused by a person subject to the UCMJ. However, judicial interpretations have both expanded and contracted the scope of the statute’s literal language to conform to the practicalities of the military as well as the courts’ various views of the drafter’s intent. b. In the years following the enactment of the UCMJ, military courts applied both an “official questioning” test and a “position of authority” test to narrow the broad “[p]erson subject to this chapter” language of Article 31. Key elements of these tests were merged by the CMA in United States v. Duga , 10 M.J. 206 (C.M.A. 1981).6 c. Failure to provide warnings when required could result in a violation of Article 98, Noncompliance with Procedural Rules. d. The current standard:
    1. In Duga , the CMA held Article 31(b) applies only to situations in which, because of military rank, duty, or other similar relationship, there might be subtle pressure on a suspect to respond to an inquiry. Accordingly, the court set forth a two- pronged test to determine whether a person is “a person subject to this chapter” for the purposes of Article 31. The points of analysis are: (a) Was the questioner subject to the Code acting in an official capacity in the inquiry or was the questioning based on personal motivation?; and, 5 This type of analysis was first suggested by Professor Maguire in 1958. Major Robert F. Maguire, The Warning Requirement of Article 31(b): Who Must do What to Whom and When? , 2 MIL. L. REV. 1 (1958). The analysis was examined and explained in light of Miranda and ten years of its progeny by Professor (then Captain) Lederer in 1976. Captain Fredric I. Lederer, Rights Warnings in the Armed Services , 72 MIL. L. REV. 1 (1976). 6 The foundation for what we now know as “the Duga test” was laid twenty-seven years earlier in United States v. Gibson , 14 C.M.R. 164 (C.M.A. 1954). In Gibson , the court also provided a review of Article 31’s purpose and the legislative history. (b) Did the person questioned perceive the inquiry as involving more than a casual conversation?
    2. The Duga version of the official questioning standard was further defined by the court in United States v. Loukas , 29 M.J. 385 (C.M.A. 1990). The Loukas court held that Article 31(b) warnings were not required prior to an aircraft crew chief’s questioning of a crew member about drug use, where the questions were limited to those needed to “fulfill operational responsibilities, and there was no evidence suggesting his inquiries were designed to evade constitutional or codal rights.” Now Article 31 “requires warnings only when questioning is done during an official law-enforcement investigation or disciplinary inquiry.”7 e. Law enforcement or disciplinary inquiry: the Primary Purpose Test.
      1. United States v. Cohen , 63 M.J. 45 (C.A.A.F. 2006). Air Force IG’s conversations with a servicemember filing a complaint extended beyond the boundaries necessary to fulfill his administrative duties and should have been proceeded by an Article 31 rights warning. While the IG’s responsibilities were primarily administrative, they were not exclusively so under the applicable Air Force Instructions. Under the circumstances of the case the IG had disciplinary responsibilities and should have suspected the complainant of an offense and advised him of his Article 31 rights prior eliciting incriminating statements from him.
      2. United States v. Pittman , 36 M.J. 404 (C.M.A. 1993). Accused’s section leader, and friend, was required to escort him off-post. Unaware of the child abuse allegations, the escort asked the accused what was going on. Accused admitted hitting his stepson. Trial court held this questioning was motivated out of personal curiosity and not interrogation or a request for a statement within the meaning of Article 31(b). The CMA affirmed, citing Duga . See also United States v. Jones , 24 M.J. 367 (C.M.A. 1987); United States v. Williams , 39 M.J. 758 (A.C.M.R. 1994).
      3. United States v. Guron , 37 M.J. 942 (A.F.C.M.R. 1993). Interviews by accounting and finance personnel to determine eligibility for pay and allowances, but not for purposes of disciplinary action or criminal prosecution, do not require Article 31 warnings be given. 7 Analysis of whether questioning is part of an official law enforcement investigation or disciplinary inquiry is governed by an objective test. An investigation is law enforcement or disciplinary when, based on all the facts and circumstances at the time of the interview, “the military questioner was acting or could reasonably be considered as acting in an official law enforcement or disciplinary capacity.” United States v. Good , 32 M.J. 105 (C.M.A. 1991). Dicta in both Loukas and Good indicate that when a military supervisor in the subject’s chain of command conducts the questioning, there is a rebuttable presumption that the questioning was done for disciplinary purposes.
      4. United States v. Bowerman , 39 M.J. 219 (C.M.A. 1994). Army doctor was not required to inform accused of Article 31 rights when questioning him about child’s injuries even though doctor thought child abuse was a distinct possibility.8
      5. United States v. Dudley , 42 M.J. 528 (N-M. Ct. Crim. App. 1995). Statement by accused to psychiatrist was admissible, even though psychiatrist had not given accused Article 31 warnings and knew of charges against accused. Accused was brought to psychiatrist by investigator who feared that accused might be suicidal and the psychiatrist asked questions for diagnostic purposes in order to determine whether accused was a suicide risk.
      6. United States v. Bell , 44 M.J. 403 (C.A.A.F. 1996). Article 31 requirement for warnings does not apply at trial or Article 32 investigations because they are “judicial proceeding[s]; not disciplinary or law enforcement tools within the context of Article 31.” However, RCM 405(f)(7) requires that warnings be given to the accused at an Article 32 hearing. See also Mil. R. Evid. 301(b)(2) regarding the military judge obligation to provide witnesses warnings.
      7. United States v. Moses , 45 M.J. 132 (C.A.A.F. 1996). Naval Criminal Investigative Service (NCIS) agents engaged in an armed standoff with the accused were not engaged in a law enforcement or disciplinary inquiry when they asked the accused what weapons he had inside the house. Rather, the questioning was considered negotiations designed to bring criminal conduct to an end peacefully.
      8. United States v. Payne , 47 M.J. 37 (C.A.A.F. 1997). Defense Investigative Service (DIS) agents conducting background investigation were not engaged in law enforcement activities, therefore, they did not have to warn the accused of his rights under Article 31. See also United States v. Tanksley , 50 M.J. 609 (N-M. Ct. Crim. App. 1999) (NCIS agents conducting background investigation). 88 See also United States v. Brown , 38 M.J. 696 (A.F.C.M.R. 1993); United States v. Baker , 29 C.M.R. 129 (C.M.A. 1960) (doctor not required to read rights before questioning appellant during a physical about needle marks on his arms).
      9. United States v. Bradley , 51 M.J. 437 (C.A.A.F. 1999). A commander, questioning his Soldier about whether the Soldier had been charged with criminal conduct in order to determine whether the accused’s security clearance should be terminated, was not required to give Article 31(b) warnings, since the purpose of the questioning was not for law enforcement of disciplinary purposes. The CAAF recognized an “administrative and operational exception” that may overcome the presumption that “a superior in the immediate chain of command is acting in an investigatory or disciplinary role” when questioning a subordinate about misconduct. (10) United States v. Norris , 55 M.J. 209 (C.A.A.F. 2001). The appellant was friends with the family of the victim. When the father (E-7) of the victim asked the appellant (E-4) about the relationship, he admitted that he had kissed and performed oral sex on her. The conversation lasted two hours, during which neither man referred to each other by rank. The court concluded that the victim’s father was not asking questions for a disciplinary or law enforcement purpose, but rather sought out the appellant to clarify the matter. (11) United States v. Guyton-Bhatt , 56 M.J. 484 (C.A.A.F. 2002). A legal assistance attorney was required to give Article 31 warnings to a debtor of his client, where the attorney suspected the debtor of committing forgery, planned to pursue criminal action against the debtor as a way to help his client, and used the authority of his position when he called the debtor to gather information. The CAAF concluded that the legal assistance attorney was “acting as an investigator in pursuing this criminal action.” (12) United States v. Benner , 57 M.J. 210 (C.A.A.F. 2002). A chaplain was required to give warnings when he abandoned his clerical role and was acting solely as an Army officer. He did this when he breached the “communications to clergy” privilege by informing the appellant that he would have to report the appellant’s child sexual abuse incident to authorities if the appellant did not. (13) United States v. Smith , 56 M.J. 653 (A. Ct. Crim. App. 2001). President of prison’s Unscheduled Reclassification Board was not required to read Article 31 rights to an inmate prior to asking him if he would like to make a statement about his recent escape, since the purpose of the board was to determine if the inmate’s custody classification should be tightened. (14) Defense counsel are not required to read Article 31 rights when conducting interviews of a witness on behalf of their clients, even if he suspects the witness committed a criminal offense. TJAG’s PRC Opinion 90-2; United States v. Howard , 17 C.M.R. 186 (C.M.A. 1954); United States v. Marshall , 45 C.M.R. 802 (N.M.C.M.R. 1972); but see United States v. Milburn , 8 M.J. 110 (C.M.R 1979). f. Civilian interrogations.bestmilitarydefensedefenseattorneys9.51.59PM
        1. General Rule. The plain language of the statute seems to limit the class of people who must provide Article 31(b) warnings to those who are subject to the UCMJ themselves. Mil. R. Evid. 305(b)(1) provides, however, that a “[p]erson subject to the code . . . includes a person acting as a knowing agent . . . .” Additionally, the courts have rejected literal application of the statute and provide instead that in those cases where military and civilian agents are working in close cooperation with each other for law enforcement or disciplinary purposes, civilian interrogators are “persons subject to the chapter” for the purposes of Article 31.
        2. Tests. Civilian agents may have to provide Article 31 warnings when, under the “totality of the circumstances” they are either acting as “instruments” of military investigators, or where the military and civilian investigations have “merged.” (a) The merger test: (1) Are there different purposes or objectives to the investigations?; and (2) Are the investigations conducted separately? Additionally, the test to determine the second prong is: (a) Was the activity coordinated between military and civilian authorities?; (b) Did the military give guidance or advice?; and, (c) Did the military influence the civilian investigation? (b) The instrumentality test: (1) Is the civilian agent employed by, or otherwise subordinate to, military authority?; (2) Is the civilian under the control, direction, or supervision of military authority?; and, (3) Did the civilian acted at the behest of military authority or, instead, had an independent duty to investigate?9 99 United States v. Grisham , 16 C.M.R. 268 (C.M.A. 1954).
        3. United States v. Lonetree , 35 M.J. 396 (C.M.A. 1992). Civilian intelligence agents were not required to read Article 31 warnings to Marine suspected of espionage because (1) their investigation had not merged into an “indivisible entity” with the military investigation, and (2) the civilian investigators were not acting in furtherance of any military investigation or as an instrument of the military.10
        4. United States v. Quillen , 27 M.J. 312 (C.M.A. 1988). A civilian PX detective was required to advise a Soldier suspected of shoplifting of his Article 31 rights before questioning him. The detective was an “instrument of the military” whose conduct in questioning the suspect was “at the behest of military authorities and in furtherance of their duty to investigate crime.” Furthermore, the suspect perceived the detective’s questioning to be more than casual conversation. See also United States v. Ruiz , 54 M.J. 138 (C.A.A.F. 2000).
        5. United States v. Moreno , 36 M.J. 107 (C.M.A. 1992). State social services worker who had an independent duty under state law to investigate child abuse was not required to provide Article 31 or Miranda warnings prior to interviewing the accused. The court found no investigative merger or agency relationship. “[O]ne of the prime elements of an agency relationship is the existence of some degree of control by the principal over the conduct and activities of the agent.”
        6. United States v. Raymond , 38 M.J. 136 (C.M.A. 1993). Social worker, subject to AR 608-18’s reporting requirements, was not acting as an investigative agent of law enforcement when he counseled the accused with full knowledge that the accused was pending charges for child sexual abuse. The CMA also ruled that health professionals engaged in treatment do not have a duty to provide Article 31(b) warnings.11 100 United States v. Oakley, Jr ., 33 M.J. 27 (C.M.A. 1991). A military policeman was present when civilian police questioned appellant regarding civilian fraud charges. The military policeman, acting as a military liaison, advised the appellant that he should cooperate with the civilian police and even asked a few questions of appellant during the interrogation. The CMA denied appellant’s motion to suppress, holding that the civilian police investigation had not merged with a military investigation.. 11 Diagnostic questioning had been previously placed outside the scope of Article 31 in United States v. Fisher , 44
    3. M.R. 277 (C.M.A. 1972). Raymond is significant in that it upheld the concept of diagnostic questioning in spiteof the regulatory reporting requirement.
    4. United States v. Brisbane , 63 M.J. 106 (C.A.A.F. 2006). Family Advocacy representative was acting as an “investigative agent of law enforcement” and should have provided the accused an Article 31 warning when she questioned him after a Family Advocacy committee meeting which included a legal officer and a military investigator. The CAAF found that the Family Advocacy representative worked in close coordination with law enforcement before and after her questioning of the accused, that she suspected the accused of an offense at their first meeting, and that evidence of her investigatory purpose could be seen in her first question (“Did you do it?”).12
    5. United States v. Payne , 47 M.J. 37 (C.A.A.F. 1997). The CAAF held that Defense Investigative Service (DIS) agents conducting a background investigation per the request of the accused were not acting under the direction of military authorities and were not, therefore, subject to the UCMJ. Accordingly, the DIS agents did not have to warn the accused of his rights under Article 31.
    6. United States v. Redd , 67 M.J. 581 (A. Ct. Crim. App. 2008). The ACCA held that where a CID agent actively participates in civilian law enforcement interview, Article 31 rights must be read to the accused. However, Miranda warnings given in this case, combined with notification that accused was under investigation for child sex offenses was sufficient to meet Article 31 requirements. (10) United States v. Garcia , 69 M.J. 658 (C.G. Ct. Crim. App. 2010). The CGCCA held that where CGIS and civilian investigations did not coordinate their activities and that the civilian investigators did not seek military guidance, Article 31, UCMJ rights were not required by the civilian investigators when questioning the appellant. The court did note that there were several coordinated joint witness interviews, but there was “no significant basis for questioning the independence of the two investigations.” g. Foreign police interrogations. 122 The CAAF noted that the “cooperative effort” between law enforcement and other members of the military community required by Air Force Regulations “does not render every member of the military community a criminal investigator or investigative agent,” but that this particular Family Advocacy representative’s actions were more akin to an investigative agent than a social worker. Brisbane , 63 M.J. at 112.
      1. The rule for interrogations by foreign police agents is similar to that set forth for U.S. civilian police agents. Mil. R. Evid. 305(h)(2) provides that no warnings are required unless the foreign police interrogation is “conducted, instigated, or participated in by military personnel or their agents . . . .” An interrogation is not “participated in” merely because U.S. agents were “present,” “acted as interpreter,” or took steps to mitigate harm.13
      2. United States v. Coleman , 25 M.J. 679 (A.C.M.R. 1987), aff’d , 26 M.J. 451 (C.M.A. 1988). “Cooperative assistance” between CID and German police investigating a murder did not turn the German interrogation into a U.S. interrogation, since the German interrogation “was, in no way ‘conducted, instigated, or participated in’ by the CID” nor was there “subterfuge” or any violation of due process voluntariness.
      3. United States v. French , 38 M.J. 420 (C.M.A. 1993). Accused was questioned by British police in presence of his First Sergeant and an OSI agent. Despite OSI’s knowledge of the investigation, their presence during the interview, an agent’s comment during interview that it would be better for accused to remain silent than to continue lying, and brief use of OSI agent’s handcuffs during arrest, “participation” of military agents did not reach level which would require Article 31 and Miranda rights.
      4. United States v. Pinson III , 56 M.J. 489 (C.A.A.F. 2002). Icelandic police were not required to give appellant Article 31 warnings prior to questioning him as part of an investigation, where the Icelandic police did not ask NCIS agents for information or leads, NCIS did not ask Icelandic police to ask certain questions, and the two governments conducted separate investigations. The CAAF found that the interrogation was “purely for the benefit of the Icelandic” authorities.
    7. bestmilitarydefensedefenseattorneys9.52.04PMcopyWhen must warnings be given? a. Under Mil. R. Evid. 305(b)(2), action that triggers the requirement for Article 31 (or Miranda ) warnings includes “any formal or informal questioning in which an incriminating response either is sought or is a reasonable consequence of such questioning.” This includes direct questioning or action that amounts to the functional equivalent of questioning, and is evaluated based on an objective test from the perspective of a reasonable police officer/investigator. b. Words or actions reasonably likely to elicit an incriminating response. 133 See United States v. Plante , 32 C.M.R. 266 (C.M.A. 1962) (holding that no Article 31(b) warnings required where MP accompanied service member to French police headquarters, but where MP did not take part in the interrogation); United States v. Jones , 6 M.J. 226 (C.M.A. 1979) (holding no Article 31(b) warnings required when German police interrogated accused in U.S. CID headquarters building solely for the benefit of the German authorities where no U.S. personnel were present).
      1. Brewer v. Williams , 430 U.S. 387 (1977). “Christian burial speech” was intended to elicit incriminating information and was tantamount to interrogation where police knew accused was “deeply religious,” and the speech was directed to him.
      2. Rhode Island v. Innis , 446 U.S. 291 (1980). “‘Interrogation’ under Miranda refers . . . to express questioning, . . . [and] also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response . . . .” Conversation between police while transporting suspect to station that children from nearby school for handicapped might find the shotgun and hurt themselves was held not an interrogation, since it was not directed to suspect and no reason to believe he was susceptible to such remarks.
      3. United States v. Byers , 26 M.J. 132 (C.M.A. 1988). “Interrogate” for purposes of Article 31(b) corresponds with Supreme Court interpretation of “interrogation” in applying Miranda warning requirement. An OSI agent’s 20-40 minute pre-warning commentary was interrogation. The agent could tell the suspect that “the suspicion results from a positive drug test. To go further violates Article 31(b).” Taint attenuated, however, and statement admitted.
      4. United States v. Guron , 37 M.J. 942 (A.F.C.M.R. 1993). A 9- minute pre-warning conversation about a variety of subjects having nothing to do with the BAQ fraud investigation, the purpose of which was to relax the subject and get acquainted, was not the functional equivalent of interrogation.
      5. United States v. Young , 49 M.J. 265 (C.A.A.F. 1998). Investigator’s comment: “I want you to remember me, and I want you to remember my face, and I want you to remember that I gave you a chance,” directed to the accused after the accused invoked his right to counsel may have been an interrogation. Judge Sullivan, in a concurring opinion, firmly believes that it was. The court affirmed the admissibility of the subsequent confession on other grounds.
      6. United States v. Muldoon , 10 M.J. 254 (C.M.A 1981). The “time-honored technique to elicit a statement — namely, informing the suspect that he has been implicated by someone else,” is interrogation. c. Not “interrogation.”
        1. Subjects who begin a statement in a spontaneous fashion do not need to be stopped and warned. The appropriate rights warning, however, must precede any follow-up interrogation. See Analysis to Mil. R. Evid. 305(c).
        2. United States v. Warren , 47 M.J. 649 (A. Ct. Crim. App. 1997). Asking the accused to put his spontaneous statement in writing was not an interrogation. An interrogation began, however, when the investigator asked the accused to elaborate and explain portions of the statement.
        3. United States v. Turner , 48 M.J. 513 (A. Ct. Crim. App. 1998). Telling the accused that he was AWOL and would be turned over to a particular military law enforcement authority did not constitute an interrogation. The ACCA viewed these comments as statements regarding the nature of evidence against the accused and not an interrogation.
        4. United States v. Vitale , 34 M.J. 210 (C.M.A. 1992). First Sergeant warned accused not to discuss the matter and to let OSI handle it because she did not want to get involved. Accused was previously interviewed by another NCO following an improper rights advice. Held: First Sergeant’s conduct was not the “functional equivalent of interrogation,” and accused’s subsequent unsolicited statements were uttered spontaneously, voluntarily, and without coercion.
        5. United States v. Lichtenhan , 40 M.J. 466 (C.M.A. 1994). An investigator (Inv.) considered the accused a suspect in a series of thefts, and intended to question him regarding a related matter. The investigator approached the accused and initiated the following interchange: Inv.: “[Y]ou got a minute to talk?” Accused: “Sure, chief, but there’s something I need to talk to you about first.” Inv.: “Go ahead.” The accused proceeded to make a series of incriminating remarks. The CMA ruled the investigator’s approach and comments did not amount to questioning such that Article 31 requirements were triggered.
        6. United States v. Watkins , 34 M.J. 344 (C.M.A. 1992). Suspect invoked right to silence. Several hours later, suspect was re- approached by same CID agent and asked for a re-interview, whereupon the suspect made some incriminating statements. Held: Simply asking for a re-interview of an individual not in custody was not questioning designed “to elicit an incriminating” statement.
        7. United States v. Ruiz , 54 M.J. 138 (C.A.A.F. 2000). A civilian store detective employed by AAFES, upon suspecting that the appellant had stolen store merchandise, stated to him, “[t]here seems to be some AAFES merchandise that hasn’t [sic] been paid for.” The appellant replied, “yes,” produced the merchandise from under his coat, and said “you got me.” The CAAF ruled that Article 31(b) warnings were not required because the detective did not “interrogate” the accused, but rather informed him of why he was stopped and why he was asked to accompany the detective back to the store’s office.
        8. United States v. Allen , 54 M.J. 854 (A.F. Ct. Crim. App. 2001). During the reading of his charges by his commander, the appellant appeared pale and shocked, and near the end of the reading stated, “the fourth one is true, or partially true.” The court concluded that the reading of the charges in this case was not the functional equivalent of an interrogation. The court placed special emphasis on the circumstances surrounding the reading of the charges. Specifically, that the appellant was not asked any questions before being read his charges, the accused was not in confinement, and he was a lieutenant colonel.
        9. Consent to search. (a) United States v. Burns , 33 M.J. 316 (C.M.A. 1991). Requesting consent to search and also conducting a urine test did not violate the Fifth Amendment even though the accused previously requested counsel. Asking the accused questions during the search of his residence did violate the Fifth Amendment, but were non-prejudicial errors. (b) United States v. Vassar , 52 M.J. 9 (C.A.A.F. 1999). While in the hospital, the accused signed a written consent form and gave a urine sample, which tested positive for drugs. The CAAF held that the consent was voluntary and that there is no requirement to give Article 31(b) warnings before asking for consent to search. d. Continuous or successive interrogations.
          1. The general rule is that if the warnings were given properly at the first interrogation session and that the time elapsed between the first and subsequent sessions is sufficiently short as to constitute one entire continuous interrogation, separate warnings need not be given. On the other hand, if the time interval is long enough to contain separate and distinct interrogation sessions, then each session must be prefaced by Article 31(b) warnings. No firm guidance can be given as to what the minimum time interval will result in a determination that the sessions constituted continuing interrogation.
          2. Military courts have decided these matters on an ad hoc basis. United States v. Schultz , 41 C.M.R. 311 (C.M.A. 1970) (second interrogation by same agents about six hours after initial warnings does not require new warnings). Accord United States v. Thompson , 31 M.J. 781 (A.C.M.R. 1990) (seven hours between interrogations).
          3. United States v. Jefferson , 44 M.J. 312 (C.A.A.F. 1996). Re- interrogation of accused four days after initial interrogation was not preceded by rights warning, but rather with question if he remembered his previous rights warning. Reminder was held to be sufficient warning under the facts of the case. e. Perception of the person questioned; was it more than casual conversation?
            1. United States v. Parrillo , 31 M.J. 886 (A.F.C.M.R. 1990), aff’d on other grounds , 34 M.J. 112 (C.M.A. 1992). Air Force sergeant acting as agent of OSI was not required to read Article 31 warnings before questioning lieutenant about drugs. Although questioning was official, lieutenant perceived it as casual conversation because of prior sexual relationship with the sergeant.
            2. United States v. Harvey , 37 M.J. 140 (C.M.A. 1993). Accused, after invoking her rights, arranged 3 meetings with co-accused to discuss pending government investigation. The meetings were taped by the co-accused with OSI assistance. The CMA found no Article 31(b) violation because the accused could not have perceived it as an inquiry by a person acting in an official capacity.
            3. United States v. Price , 44 M.J. 430 (C.A.A.F. 1996). A subordinate of the accused questioned the accused several times about suspected drug use without advising the accused of his Article 31 rights. The court found that even if one assumes that the subordinate was acting as an OSI agent, the second prong of the Duga test was not present. The court focused on the following facts: 1) the accused was senior; 2) the environment where the conversations took place was non-coercive; and, 3) the accused was not aware that the subordinate had contacted OSI.
            4. United States v. Rios , 48 M.J. 261 (C.A.A.F. 1998). The accused’s commander directed him to telephone his daughter whom he was suspected of sexually abusing. The call was being recorded. Although the accused testified that he thought the call was being recorded, Article 31(b) warnings were not required because the accused perceived the call to be a casual conversation. See also United States v. White , 48 M.J. 251 (C.A.A.F. 1998) (telephone call between the accused and his accomplice, which was arranged and monitored by government investigators, was viewed as a casual conversation).
            5. United States v. Aaron , 54 M.J. 538 (A.F. Ct. Crim. App. 2000). Rights warnings were not required to be given to the suspect prior to a conversation between him and his daughter, whom he was suspected of having a sexual relationship with, in a hotel room that was arranged and taped by OSI agents. Concluding that the meeting between the appellant and his daughter was not a custodial interrogation nor could appellant perceive it as “official questioning,” the court held that neither the Fifth Amendment, nor Article 31 were violated.
          4. Who must be warned? a. Article 31 warning requirements apply only to members of the armed forces. Within this subset, warnings must be provided only to accused or persons suspected of an offense. Mere witnesses are not entitled to Article 31 protections. b. An accused is a person against whom a charge has been preferred. c. A person is a suspect if, considering all facts and circumstances at the time of the interview, the government interrogator believed, or reasonably should have believed, that the one being interrogated committed an offense. United States v. Morris , 13 M.J. 297 (C.M.A. 1982). Note that this test has both a subjective and objective prong. The interrogator’s subjective belief that the subject has committed an offense will trigger the warning requirement. Even if there is not subjective belief, however, if the totality of the circumstances would cause a reasonable person to believe that the subject had committed an offense, the warnings will be required. United States v. Leiffer , 13 M.J. 337 (C.M.A. 1982). d. United States v. Swift , 53 M.J. 439 (C.A.A.F. 2000). The accused was a suspect where his wife called the command and alleged that she was contacted by a woman also claiming to married to the accused, and the command then consulted the chief of military justice and the MCM about possible bigamy charges before questioning the accused. e. United States v. Murphy , 33 M.J. 323 (C.M.A. 1991). Accused became a suspect once commander received a specific report that she had illegally used cocaine and the commander then prepared to ask specific questions suggested by law-enforcement agents. f. United States v. Davis , 36 M.J. 337 (C.M.A. 1993), aff’d on other grounds , 512 U.S. 452 (1994). The CMA holds that the accused was not a suspect and no Article 31(b) warnings were required prior to the initial interview, despite several facts narrowing the investigation’s focus onto him and several others. g. United States v. Brown , 40 M.J. 152 (C.M.A. 1994). Unknown and unknowable future criminal proclivities of the accused cannot transform leadership counseling into a criminal interrogation such that Article 31(b) requirements were triggered. Accused’s commander neither suspected, nor reasonably should have suspected, accused of criminal misconduct at time of formal counseling regarding dishonored checks. h. United States v. Meeks , 41 M.J. 150 (C.M.A. 1994). Accused was not a suspect at the time his commander met with him in attempt to persuade him to deploy, even though commander knew sergeant had missed a mobility meeting and had a hunch that accused might ultimately choose not to deploy. At time of meeting, commander thought there might be legitimate reason for accused’s missing the meeting, and until the accused informed his commander that he would not deploy, no offense had been committed. i. United States v. Schlamer , 47 M.J. 670 (N-M. Ct. Crim. App. 1997). Before unwarned questioning, NCIS agents were informed that the accused was seen in the area where a murder occurred. The NMCCA held that the accused was one of hundreds of individuals who the investigators believed might have helpful information and was, therefore, not a suspect requiring Article 31(b) warnings. j. United States v. Miller , 48 M.J. 49 (C.A.A.F. 1998). After receiving a report about a gang robbery, an MP stopped the accused to ascertain his identity and whereabouts during the evening. The accused answered the questions without being warned of his rights under Miranda or Article 31. Even though the accused matched the general description of one of the assailants, the CAAF found that the investigation had not sufficiently narrowed to make the accused a suspect and, therefore, Article 31(b) was not triggered. See also United States v. Henry , 44
          5. M.R. 152 (C.M.A. 1971). k. United States v. Muirhead , 51 M.J. 94 (C.A.A.F. 1999). The accused was a suspect, and investigators were required to advise him of his rights under Article 31(b) when they questioned him during a permissive search of his residence. Prior to the search, a physician had told investigators that he suspected child abuse based on his examination of the victim. l. United States v. accDuncan , 48 M.J. 797 (N-M. Ct. Crim. App. 1998). Asking the accused questions about alleged misconduct his roommate committed was not an interrogation, since the accused was not yet a suspect.
          6. The “Public Safety” exception for Article 31 warnings? a. United States v. Loukas , 29 M.J. 385 (C.M.A. 1990). “Whether a [public safety] exception to Article 31 exists for military superiors acting in a command disciplinary function when questioning a suspect who is not in custody is an issue beyond the facts of this case.” However, the court considered the “unquestionable urgency of the threat and the immediacy of the crew chief’s response” in deciding that there was a “legitimate operational nature of his questions” that obviated the need for Article 31 warnings. b. United States v. Shepard , 34 M.J. 583 (A.C.M.R. 1992). The accused told his platoon sergeant that he had killed his wife. Platoon sergeant questioned accused, absent rights warnings, about his wife’s condition and location. Trial court admitted statements under “Public Safety” exception because the platoon sergeant was motivated by concerns for the wife’s health and safety. The ACMR found no abuse of discretion. Aff’d , 38 M.J. 408 (C.M.A. 1993) (court affirms on other grounds but indicates in dicta that there might be a public safety exception to Article 31). c. United States v. Jones , 19 M.J. 961 (A.C.M.R. 1985). Applying a “rescue doctrine,” the court held that the questioning of a suspect, who had not had right warnings, was not error where the purpose of the questions was to locate a possibly critically injured victim.

The “Public Safety” exception

United States v. Muirhead