La. Admin. Code tit. 41 § II-304

Current through Register Vol. 50, No. 9, September 20, 2024

Section II-304 - LCMJ Article 31 Warning/Right to a Lawyer

A. General. Service members suspected of a violation of the LCMJ shall be advised of their Article 31 rights. A confession or admission made by such a suspect who has not been advised of his rights may result in the confession or admission being inadmissible against him court-martial. It is possible that an accused may still be convicted because of other evidence of guilt which is admissible .

1. Procedure. The following procedure must be carefully followed in questioning a suspect to insure that his statements are admissible in court proceedings (DA Form 3881 Rights Warning Procedures/Waiver Certificate, See Figure 5.7):

a. Before asking any questions pertaining to the case, first inform the individual: "You are suspected of committing the following offense(s) which is (are) violation(s) of the Louisiana Code of Military Justice. Before I ask you any questions, you must understand your rights. You have the right to remain silent. Any statement you make may be used as evidence against you in criminal or administrative proceedings. You have the right to consult with a lawyer before being asked any questions and to have the lawyer present with you during questioning. You may hire a civilian lawyer at no cost to the government or a military lawyer will be detailed for you at no cost to you. Even if you decide to answer questions now without having a lawyer present, you may stop answering questions until you consult with a lawyer."

b. After this statement is made, the suspect should be asked if he understands his rights. When the investigator is satisfied that the suspect understands these rights, then the following two questions should be asked:

(a). "Do you want a lawyer?" and

(b). "Do you want to answer any questions or make a statement?"

2. The suspect may indicate that he wishes to waive his rights to remain silent and to consult with a lawyer. He must waive these rights freely, knowingly and intelligently. If he does so, he may then be questioned concerning the offense. If the suspect indicates that he wants to consult with a lawyer, he should not be questioned until a lawyer is present. If the suspect indicates that he does not wish to answer questions, he should not be questioned. In any case, it is essential that the investigator not use a tone of voice or manner which could lead the suspect to believe that he is being threatened or which plays down the importance of the warning. If this is done it may later be held that the suspect's agreement to answer questions was gained by coercion or improper inducement and his statement would be inadmissible in a trial by court-martial. It is advisable to have a disinterested witness present for such advice of rights and suspect statements. The investigator may decide not to question a suspect if other evidence is available (DA Form 3881 Rights Warning Procedures/Waiver Certificate, See Figure 5.7).

B. If the person being interviewed is not suspected of having committed an offense, but is merely a witness to the offense or has knowledge of it, there is no legal requirement to warn him of his rights. In the questioning, the investigator may begin to suspect that the witness was involved in the offense. This may happen when it appears that the witness was actually an accomplice or an accessory to the crime. The investigator should immediately then stop the questioning, inform the witness of the offense of which he is now suspected, and advise him of his rights as indicated above.

La. Admin. Code tit. 41, § II-304

Promulgated in accordance with the Office of the Governor, State Military Department, LR 35:2355 (November 2009).

AUTHORITY NOTE: Promulgated in accordance with R.S. 29:11(F).

NOTE: (DA Form 3881 Rights Warning Procedures/Waiver Certificate, See Figure 5.7)