N.Y. Comp. Codes R. & Regs. tit. 9 § 515.6

Current through Register Vol. 46, No. 24, June 12, 2024

Section 515.6 - Rights warnings given to the accused

(See chapter 2, FM 27-1, Legal Guide for Commanders.)

(a) Section 130.31 of the New York Military Law is the equivalent of article 31 of the UCMJ. This section requires that no person subject to this code may compel any person to answer any question which may tend to incriminate himself. Accordingly, no questioning of any accused or person suspected of an offense may take place without that person having been advised of the following:

(1) the nature of the accusation;

(2) that he has a right to remain silent;

(3) that if he gives up the right to remain silent, any statement he makes may be used against him as evidence in a court-martial.

(b) Although not specifically referred to in section 130.31, the suspect or accused shall also be further advised that he has a right to consult with counsel before answering any questions or deciding whether he should answer any questions. He should be further advised that he may seek the assistance of counsel at any stage of questioning should he consent to be questioned.

(c) Where the suspect or accused requests counsel, a judge advocate shall be provided by the State at no expense to the person and without regard to his indigence or lack thereof before the interrogation proceeds. In addition, the suspect or accused may retain civilian counsel at no expense to the State.

(d) After receiving section 130.31 warnings, the suspect may indicate that he wishes to waive his rights to remain silent and to consult with a lawyer. These rights must be waived freely, knowingly, and intelligently. The suspect may then be questioned concerning the offense. If the suspect indicates that he wishes to consult a lawyer, the accused should not be questioned until a lawyer is present. See Appendix L-2 Procedural Rights Warning Form, DMNA form 1061.

(e) If the accused or suspect indicates that he does not wish to answer questions, no questions should be asked. In any case, it is essential that the commander not use a tone of voice 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. The statement would then be inadmissible in a trial by court-martial. A company commander may decide not to question a suspect if other evidence is available.

(f) 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 give the individual a rights warning. During the questioning, the commander 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 commander should then stop the questioning, inform the witness of the offense of which he is now suspected, and advise him of the rights previously described.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 515.6