Who Must Warn?

United States v. Kirk, No. Misc. 20100443, 2010 WL 3544577 (A. Ct. Crim. App. July 28, 2010) (unpublished) deals with the issue of who must warn. This case is an Article 62, UCMJ, appeal by the government. The appellee stands charged with one specification of desertion terminated by apprehension.

The issue before the ACCA was whether the military judge erred by ruling that appellee’s statement to the first sergeant were inadmissible due to the lack of an Article 31, UCMJ, warning. The ACCA held that the statement was erroneously suppressed by the military judge. Article 31, UCMJ, rights are required when a person subject to the code, acting in an official capacity, questions a suspect or accused, for law enforcement or disciplinary purposes. In this case, the military judge did not make a finding whether the first sergeant was acting for law enforcement or disciplinary purposes. The evidence tended to show that the first sergeant was acting to inprocess the appellee, not question him for disciplinary purposes. In fact, the first sergeant had not told anyone except his successor about the appellee’s admission, and the prosecution did not find out until right before they disclosed the statement. The next point that the ACCA made is that the first sergeant was not questioning (interrogating) the appellee. The evidence tended to show that none of the questions, particularly the question at issue about his marital status would be “reasonably likely to elicit an incriminating response” about the AWOL or desertion offense. Finally, the ACCA made note that the military judge erroneously ruled that the statement was involuntary and could not be used for any purpose, including impeachment. When a statement is involuntary based solely on the failure to provide Article 31, UCMJ, warnings, the statement could at a minimum be used for impeachment. See Mil. R. Evid. 304(b). The ACCA found the statement to be voluntary, and that the first sergeant was not required to read Article 31, UCMJ, rights before questioning the appellee about his marital status, under the circumstances.