Suppressing Statements Given In Violation Of Article 31, UCMJ Can Be A Game-Changer At Trial

Posted by Ernesto Gapasin | Oct 27, 2023 | 0 Comments

One of the most effective ways to drastically change the outcome of a trial is by suppressing a statement or false confession.  Your attorney does this by filing a Motion to Suppress with the Military Judge.  Such a motion can be an absolute game-changer in a trial by keeping out unwanted, incriminating statements by an accused.  “If the accused makes a timely motion or objection under this rule, an involuntary statement from the accused, or any evidence derived therefrom, is inadmissible at trial except as provided in subdivision (e).” MRE 304(a).

Under MRE 305(c)(4), “If a person chooses to exercise the privilege against self-incrimination, questioning must cease immediately.  If a person who is subject to interrogation under the circumstances described in subdivisions (c)(2) or (c)(3) of this rule chooses to exercise the right to counsel, questioning must cease until counsel is present.” MRE 305(c)(4).  In addition to the rights provided to civilians under the Fifth Amendment (Miranda-Minnick-Shatzer), military members are entitled to protections under Article 31, UCMJ. MRE 305(c) describes rights that an accused is entitled to.  This includes:   “(1) Article 31 Rights Warnings.  A statement obtained from the accused in violation of the accused's rights under Article 31 is involuntary and therefore inadmissible against the accused except as provided in subsection (d).  Pursuant to Article 31, a person subject to the code may not interrogate or request any statement from an accused or a person suspected of an offense without first:  (1) informing the accused or suspect of the nature of the accusation; (2) advising the accused or suspect that the accused or suspect has the right to remain silent; and (3) advising the accused or suspect that any statement made may be used as evidence against the accused or suspect in a trial by court-martial.” 

The law that compulsory self-incrimination is prohibited is critical to law enforcement.  Under Title 10 USCS Sec. 831, “No person subject to [10 USCS Sec 801 et seq.] may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.”  “(a) No person subject to this chapter [10 USCS §§ 801 et seq.] may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him . . . . (d) 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 court-martial.” 

What may not be known by most is that a military questioner must give a military suspect an Article 31 warning when the questioner is "acting or could reasonably be considered to be acting in an official law-enforcement or disciplinary capacity." United States v. Good, 32 M.J. 105, 108 (CMA 1991) (footnote and citations omitted).   

Though Article 31 obligations usually attach only to military questioners, this Court has recognized that even civilian investigators must give Article 31 warnings in at least two situations: (1) When the scope and character of their cooperative efforts demonstrate "that the two investigations merged into an indivisible entity"; and (2) when the civilian investigator acts "in furtherance of any military investigation, or in any sense as an instrument of the military."  United States v. Penn, 18 U.S.C.M.A. 194, 199, 39 C.M.R. 194, 199 (1969) (citations omitted).  See also, United States v. Good, 32 M.J. 105 (CMA 1991), (this Court explains that a "servicemember is entitled to [an Article 31 warning] only if he is a suspect at the time of the questioning and the questioning itself is part of an official law-enforcement investigation or disciplinary inquiry. However, any questioning of a suspect by a military superior in his immediate chain of command will normally be presumed to be for disciplinary purposes” Id. at 108 (citations omitted)”).

In United States v. Churnovic, 22 M.J. 401 (CMA 1986), the Court of Military Appeals applied Article 31(d) to an induced confession. In Churnovic, a senior Navy Noncommissioned Officer (NCO) promised Churnovic that, if he told what he knew about drugs on board a ship, the seaman would not "get in trouble" with the chain of command.  Id. at 406. Churnovic relied on this promise and told the NCO where some drugs were located, which resulted in the ship's captain to initiate an investigation leading to the seaman's conviction on drug charges.  

The Chief Judge concluded in his opinion that the NCO's assurances "encompassed a promise that [the accused's] statements would not be used against him as evidence in a trial." The Chief Judge therefore “deemed inadmissible the NCO's testimony regarding Churnovic's confession, since ‘use of such a promise to obtain a statement but not honoring that promise constitutes an 'unlawful inducement' for purposes of Article 31(d).' Additionally, Churnovic's subsequent confession given to a Navy investigator was also ruled inadmissible because ‘clearly the later statement would never have been made if earlier Churnovic had not made his inadmissible statement' to the NCO”.  Id. at 408.  

“In a concurring opinion, Judge Cox explained that he would determine voluntariness by assessing whether a confession was 'the product of an essentially free and unconstrained choice.' Id. at 409 (Cox, J., concurring in the result) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041, 2046, 36 L. Ed. 2d 854 (1973)). Since Churnovic relied on the senior NCO's promise that he would not ‘get in trouble' with ‘the chain of command on the ship' if he cooperated, Judge Cox concluded that Churnovic's statements should have been suppressed.”  Id. (citing United States v. Dalrymple, 14 U.S.C.M.A. 307, 34 C.M.R. 87 (1963)). 

Based on Churnovic, “when a superior, acting with the apparent approval of the chain of command, makes an assurance of confidentiality to a subordinate, an incriminating statement springing from that assurance may not be the product of a free and unconstrained choice. United States v. Washington, 9 U.S.C.M.A. 131, 133, 25 C.M.R. 393, 395 (1958) (holding inadmissible a confession obtained from a suspect by a promise of confidentiality from the suspect's company commander, explaining that the company commander ‘occupied a position of responsibility where his assurance could be given credence by the accused, and the overall effect of the promise created in the mind of the accused a belief that his disclosures would not be made the basis for a prosecution').”   

You may be a suspect and mistakenly gave a statement or admissions to law enforcement that you felt pressured into giving.  If you believe suppression is a possibility, contact Gapasin Law Group, LLC today by filling out the "Contact Us" Form on this page.  Submit your contact information and we will reach out to you for a no-cost consultation.  

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Ernesto Gapasin



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