Quote:
Originally posted by The Reaper
I have seen this claim before.
Continuing to talk AFTER you have been told that you are free to stop or to have an attorney is not a defense, and non-custodial questioning does not require Article 31 Rights to be read either.
TR
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That is not entirely accurate.
Regarding waiver of right of counsel:
A suspect may continue to talk after being advised of his or her
Miranda rights, but the waiver must be knowing, voluntary and intelligent. Continuing to talk
may be such a waiver, but that depends on the totality of the circumstances.
Invocation of the right of counsel, however,
is alleged here. If the suspect invokes the right to counsel at any time, questioning must immediately cease until an attorney is present. (
Edwards v. Arizona, 451 U.S. 477 (1981), Military Rule of Evidence 305(f)(2)).
The suspect may initiate a resumption of questioning, waiving the previously invoked right to counsel, but this waiver must also be knowing, voluntary and intelligent. According to the Military Rules of Evidence, "the accused or suspect must acknowledge affirmatively that he or she understands the rights involved, affirmatively decline the right to counsel and affirmatively consent to making a statement." (Mil. R. Evid. 305(g)(1)).
The burden is on the prosecution to prove that a waiver was valid. The Military Rules of Evidence provide that "any subsequent waiver of the right to counsel obtained during a custodial interrogation concerning the same or different offenses is invalid unless the prosecution can demonstrate by a preponderance of the evidence that (i) the accused or suspect initiated the communication leading to the waiver; or (ii) the accused or suspect has not continuously had his or her freedom restricted by confinement, or other means, during the period between the request for counsel and the subsequent waiver." (Mil. R. Evid. 305(g)(2)(B)).
Regarding custodial interrogation:
As CSB notes, while
Miranda does not apply until there is a custodial interrogation, Article 31 rights attach earlier. "When an individual is suspected of an offense, the warning must be given prior to questioning, even if the suspect is not in custody."
U.S. v. Mapes, 59 M.J. 60 (Court of Appeals of the Armed Forces 2003) (quoting Francis A. Gilligan,
The Bill of Rights and Servicemembers, 1987 Army Law. 3, 4 (Dec. 1987)). The rule is broader by design because military service is almost custodial by nature - soldiers are required to obey their NCOs and officers, and to answer to them. So when they are questioned as suspects, they have to be informed of their rights even if not technically in custody.
But Article 31(b) applies to suspects - the rights don't attach every time an NCO or officer asks a soldier a question. So there is a distinction between questioning focused on the accomplishment of a military mission and questioning to elicit information for use in disciplinary proceedings. However, "questioning by a military superior in the immediate chain of command will normally be presumed to be for disciplinary purposes."
U.S. v. Swift, Crim. App. No. 32447 (Ct. App. Armed Forces 2000). So sometimes the issue of whether Article 31(b) warnings are required is simply an issue of who is asking as well as why he or she is asking.
Article 31(b) versus Miranda:
The right to remain silent is an Article 31(b)
and a Fifth Amendment right. However, the right to an attorney is not in Article 31(b). Unlike the Article 31(b) rights, the Fifth Amendment right to counsel only attaches when there is custodial interrogation (there is also a Sixth Amendment right to counsel, but that only applies once charges are filed).
One big question would be if PFC England was or was not a suspect when she was questioned. If PFC England was initially questioned in a fact-finding inquiry rather than as a suspect, then, depending on the circumstances, she had no right to receive Article 31(b) warnings. And while as a matter of practice, when Article 31(b) warnings are given, the
Miranda warning governing the right to counsel is also given, it is not legally required unless there is also custodial interrogation.
So you have three potential scenarios:
1. She was questioned as part of an administrative investigation, but not as a suspect. No Article 31(b) rights. No right to counsel. No issue of waiver.
2. She was questioned as a suspect, but there was no custodial interrogation. Article 31(b) rights, but no right to counsel. Waiver of Article 31(b) rights must be knowing, voluntary and intelligent.
3. She was questioned as a suspect and there was custodial interrogation. Article 31(b) rights and right to counsel. Waiver of both Article 31(b) and
Miranda rights must be knowing, voluntary and intelligent.
Based on the article, we simply do not know enough facts to know which scenario played out here.