The current language of Article 31(b), UCMJ, 10 U.S.C. § 831(b), is unchanged from the original text enacted in 1950:
(b) 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 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.
This provision not only predates the Supreme Court’s requirement for a similar warning in civilian contexts in Miranda v. Arizona, 384 U.S. 436 (1966), but its existence was cited by Chief Justice Warren as a fact supporting the Court’s decision in that case. 384 U.S. at 489.
Article 31(b) is #3 in our list of the Top Ten Military Justice Stories of 2014 because of two cases from the past year that put a new gloss on this 64 year old provision.
The first case involved a robbery in Iraq. Three soldiers robbed an Iraqi businessman of over $380,000 in U.S. currency, but were quickly apprehended when a fourth soldier, named Ellis, who had rebuffed efforts aimed at recruiting him into the conspiracy, confronted one of the conspirators, named Jones, questioned him, and then alerted authorities. Yet Ellis did not give Jones an Article 31(b) rights warning before questioning him during that confrontation, and the resulting litigation about the admissibility of incriminating statements made by Jones went all the way to CAAF.
CAAF’s decision in United States v. Jones, 73 M.J. 357 (C.A.A.F. Jul. 21, 2014) (CAAFlog case page), didn’t result in any relief for the appellant, as the court affirmed the trial stage ruling that admitted his incriminating statements to Ellis into evidence despite the lack of an Article 31(b) warning. But Judge Ryan’s opinion for a unanimous CAAF resulted in a significant shift in the way Article 31(b) is applied.
The opinion explains that a rights warning is required only “when (1) a person subject to the UCMJ, (2) interrogates or requests any statement, (3) from an accused or person suspected of an offense, and (4) the statements regard the offense of which the person questioned is accused or suspected.” 73 M.J. at 361. But the second prong of that test – the requirement for an interrogation or a request for a statement – was limited by caselaw to include only situations where “the person questioning was acting in an official capacity and ‘the person questioned perceived that the inquiry involved more than a casual conversation.'” 73 M.J. at 361-362 (quoting United States v. Duga, 10 M.J. 206, 2210 (C.M.A. 1981)) (emphasis in original). In other words, even if a military questioner conducted an interrogation in an official capacity, Article 31(b) did not apply if the person being questioned subjectively thought that it was just a casual conversation. But in Jones, CAAF “expressly reject[ed] the second, subjective, prong of that test,” endorsing an objective test in its place. 73 M.J. at 362.
CAAF’s decision in Jones significantly broadened the applicability of Article 31(b), expanding it from only those situations where the person being questioned subjectively believes that the inquiry involves more than a casual conversation, to any situation where the questioner “[i]s acting or could reasonably be considered to be acting in an official law-enforcement or disciplinary capacity.” 73 M.J. at 362 (emphasis added). However, a footnote explained that this expansion does not include situations involving informants or undercover agents that might otherwise trigger an objective analysis. See 73 M.J. at 361 n.5.
The second significant Article 31(b) decision of 2014 was CAAF’s action in United States v. Gilbreath, 74 M.J. 11 (C.A.A.F. Dec. 18, 2014) (CAAFlog case page), in which the court addressed the applicability of Article 31(b) to reserve component personnel. In another unanimous decision, CAAF held that the protections of Article 31(b) do apply to members of the Individual Ready Reserve, rejecting the opposite conclusion reached by the Navy-Marine Corps CCA.
Writing for the court, Chief Judge Baker explained that:
Congress intended Article 31(b), UCMJ, to address the subtle and not so subtle pressures that apply to military life and might cause members of the armed forces to feel compelled to self-incriminate. . . . In this regard, the CCA concluded that IRR members are “far removed in time and place from the coercive military environment contemplated by Congress,” and thus held as a matter of law that Article 31(b), UCMJ, does not apply to active duty military members questioning members of the IRR. We disagree. The IRR can be every bit as “coercive,” or perhaps better put, respectful of military grade and rank as active duty service. This is evident when one considers the cultural knowledge of military service and does not just assume constructive knowledge of the law.
74 M.J. at __, slip op. at 15 (citation omitted).
But finding Article 31(b) applicable to reserve personnel was no guarantee of relief for the appellant in Gilbreath, who stole a pistol while he was on active duty but was questioned about it while in an inactive reserve status, and then was reactivated for trial by court-martial. Yet the appellant in Gilbreath did win relief (reversal of his conviction), thanks in no small part to Jones. Chief Judge Baker’s opinion included this analysis:
The military judge in this case concluded that no rights warning was required, because “[Sgt] Muratori was attempting to clear up the discrepancy not get [Appellant] in trouble. The evidence demonstrated that [Appellant] perceived the conversation to be informal and that [Sgt] Muratori would attempt to resolve the issue on behalf of [Appellant] without command involvement.”
We disagree, and conclude that the military judge erred in reaching this conclusion. Sgt Muratori’s own preference to avoid the military justice system is not dispositive. As discussed below, the appropriate analysis looks objectively to the facts and circumstances of the questioning, not the suspect’s subjective perceptions. Jones, 73 M.J. at 362.
74 M.J. at __, slip op. at 18 (citation omitted).
CAAF has never applied the text of Article 31(b) literally, and its decision in Jones and Gilbreath make it clear that this trend will continue. See Jones, 73 M.J. at 361; Gilbreath, 74 M.J. at __, slip op. at 14-15. However, textualism prevailed in 2014, and CAAF’s decisions expanded the special protection that Article 31(b) provides to service members in a way that closely tracks the statutory text. Moreover, the court did so unanimously, establishing firm precedent for future cases and winning Article 31(b) the #3 spot in our list of the Top Ten Military Justice Stories of 2014.