[Airbornelawyer]

One clarification: what I wrote was not a "mix of military and civil law". Some of it is from the UCMJ and some of it is case law, but everything there is military law.

Regarding PFC England, CID had opened a criminal investigation of members of the 372nd MP Company prior to MG Taguba's AR 15-6 investigation, and his report identifies her as a suspect. So she would have to have been read her rights. AR 15-6 section 3-6(5)states that:

(a)No military witnesses or military respondents will be compelled to incriminate themselves, to answer any question the answer to which could incriminate them, or to make a statement or produce evidence that is not material to the issue and that might tend to degrade them.
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(d) Whenever it appears appropriate and advisable, an investigating officer or board should explain their rights to witnesses or respondents....

The Army's "Investigation Guide for Informal Investigations" under AR 15-6 elaborates:

All soldiers suspected of criminal misconduct must first be advised of their rights.

DA Form 3881 should be used to record that the witness understands his or her rights and elects to waive those rights and make a statement. It may be necessary to provide the rights warning at the outset of the interview. In some cases, however, an investigating officer will become aware of the witness's involvement in criminal activity only after the interview has started and incriminating evidence is uncovered. In such case, rights warnings must be provided as soon as the investigating officer suspects that a witness may have been involved in criminal activity. If a witness elects to assert his or her rights and requests an attorney, all questioning must cease immediately. Questioning may only resume in the presence of the witness's attorney, if the witness consents to being interviewed.

That would seem to put England in my scenario #2 at least. Note that while Army practice, including the guidelines above, includes the right of counsel, this may not be a constitutional requirement if the questioning was not custodial. So it is possible that even if she asked for a lawyer, subsequent statements could be admissible (unless they otherwise violated Article 31), since technically she would not have had a right to counsel.

The whole thing can turn you on your head though. If she was not in custody, she had no right to counsel. But if, following Army procedure, investigators told her she had a right of counsel, and she invoked it, she might have thought she was in custody. Whether an interrogation is "custodial" is an objective test, based on whether a reasonable man in the suspect's shoes would consider himself in custody. The Military Rules of Evidence gives the right to counsel to a suspect who is being questioned by someone subject to the UCMJ and who is "is in custody, could reasonably believe himself or herself to be in custody, or is otherwise deprived of his or her freedom of action in any significant way." If England thought she was in custody, and it was "reasonable" for her to think that, then in the light of the circumstances she was in custody.

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The Swift case I noted earlier sets forth the basics of the Article 31 rights, and why they differ from Miranda. Sorry to bog you all down in quotes, but this is a good general background(internal citations omitted):

Article 31(a) of the Uniform Code of Military Justice provides that a person subject to the Code may not "compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him." Article 31(b) implements the privilege against self-incrimination through a rights' warning requirement, providing that no person subject to the Code may

"interrogate, or request any statement from an accused or a 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."

Congress established this statutory warning requirement in the aftermath of World War II, long before the Supreme Court's decision in Miranda v. Arizona mandated rights’ warnings in civilian society. Miranda specifically cited Article 31 as a precedent for requiring warning persons of the privilege against self-incrimination.

The rights’ warning requirements under Miranda represent judicially created, constitutionally based guidelines designed to protect the privilege against self-incrimination. As the product of constitutional adjudication, these guidelines are not "immutable," but are subject to such modifications and exceptions as the judiciary may deem necessary or appropriate in the course of litigation.

The primary source of the rights’ warning requirements in military law is a statutory enactment, not constitutional adjudication. Congress has provided members of the armed forces with a rights’ warning requirement that is broader than the warnings required in a civilian setting as a matter of constitutional law under Miranda. Article 31(b) mandates rights’ warnings for anyone "suspected of an offense," whereas Miranda warnings are required only in circumstances amounting to "custodial interrogation." In addition, Congress has expressly provided in Article 31(d) that "[n]o statement obtained from any person in violation of this article . . . may be received in evidence against him in a trial by court-martial." The broad application of the warning requirement under Article 31 to all suspects, not just those who are in custody, and the statutory restriction on admissibility of unwarned statements reflect a decision by the post-World War II Congress -- which included many veterans familiar with the military justice system and its relationship to military missions and operational requirements -- that the unique circumstances of military service required specific statutory protections for members of the armed forces.

In the armed forces, a person learns from the outset of recruit training to respond promptly to the direct orders and the indirect expectations of superiors and others, such as military police, who are authorized to obtain official information. Failure to respond to direct orders can result in criminal offenses unknown in civilian life. Failure to respond to the expectations of military life can lead to charges of dereliction of duty, as well as serious administrative consequences.

In such an environment, a question from a superior or an investigator is likely to trigger a direct response without any consideration of the privilege against self-incrimination. The Article 31(b) warning requirement provides members of the armed forces with statutory assurance that the standard military requirement for a full and complete response to a superior's inquiry does not apply in a situation when the privilege against self-incrimination may be invoked.

Another special feature of military life is the blending of both administrative and law enforcement roles in the performance of official duties. Officers, and non-commissioned officers (NCOs) in particular, have broad responsibility not only for the accomplishment of specific missions, but also for the health, welfare, morale, good order, and discipline of their subordinates. As a result, a servicemember may perceive that a question from an officer or NCO is being asked for administrative purposes, although the purpose actually may be to acquire information for use in disciplinary proceedings. As one commentator has noted:

"[M]ilitary suspects may know in a general sense that they have a right to remain silent, and they may know the consequences of waiving that right, but they may not be aware that they face adversarial situations where they may want to exercise that right. For example, a suspect may believe that a platoon sergeant is inquiring about personal finances to help the suspect balance a bank account. The suspect does not realize that the sergeant is asking the questions in a law enforcement capacity, to get evidence against the soldier for later use at a court-martial."

Our case law has interpreted Article 31 in a manner that recognizes the difference between questioning focused on the accomplishment of a military mission, including an administrative function, and questioning to elicit information for use in disciplinary proceedings. In some circumstances, there is likely to be a mixed purpose, and the matter must be resolved on a case-by-case basis.

In general, we have held that Article 31(b) requires rights’ warnings if: (1) the person being interrogated is a suspect at the time of the questioning, and (2) the person conducting the questioning is participating in an official law enforcement or disciplinary investigation or inquiry. Whether a person is a suspect is an objective question that "is answered by considering all the facts and circumstances at the time of the interview to determine whether the military questioner believed or reasonably should have believed that the servicemember committed an offense." Whether the questioning was part of a law enforcement or disciplinary investigation "is determined by assessing all the facts and circumstances at the time of the interview to determine whether the military questioner was acting or could reasonably be considered to be acting in an official law-enforcement or disciplinary capacity." Questioning by a military superior in the immediate chain of command "will normally be presumed to be for disciplinary purposes." The presumption is not conclusive.