v. Taylor (No. 3588), 5 USCMA 178, 17 CMR 178; U. S. v. Josey (No. 2808), 3 USCMA 767, 14 CMR 185, 191.) Inasmuch as the testimony clearly establishes that the accused was suspected of an offense and that no preliminary warning was given, it was error to admit in evidence the accused's admission. (Citing U. S. v. Taylor, supra; U. S. v. Fisher (No. 3318), 4 USCMA 152, 15 CMR 152; U. S. v. Josey, supra.) Where an admission of the accused obtained without warning him of his rights is erroneously admitted in evidence but other evidence of guilt is available a rehearing is the appropriate remedy. (Citing MCM, 1951, par 92; U. S. v. Eggers (No. 1990), 3 USCMA 191, 198, 11 CMR 191, 198.) CM 376162, Reid (1954) 18 CMR 341. The in The accused was found guilty of wrongful appropriation of an electronic repair tool kit. At the trial the prosecution attempted to introduce evidence of a confession. The defense objected on two grounds, (1) failure to warn the accused of his right to remain silent as required by UCMJ, Art 31(b) and (2) duress, in that the investigator mentioned to the accused that it might be necessary to hold up his prospective discharge, due three days hence. vestigator testified that he warned the accused as required. The accused testified that he received no warning. The court refused to admit the confession on the ground that it was not persuaded that the provisions relating to warning were fully complied with. Immediately after obtaining the confession the investigator and the accused drove to the accused's home. Over defense objection, the investigator was permitted to testify that the accused got out of the car, went into his house, and came out a few minutes later with the tool kit. The objection was on the ground that the information the investigator had obtained leading to the accused's bringing the box from the house had been unlawfully obtained. Held: The accused's incriminating action was not the product of an unwarned confession and, accordingly, the trial court correctly overruled the objection of the accused to the admission of evidence as to such action. The question as to whether the accused had been properly warned was sharply disputed and the court gave the accused the benefit of the doubt and refused to allow the confession to come in. However, the record was by no means conclusive that UCMJ, Art 31(b) had been violated. While the supervisory authority must accept the fact that the confession was excluded, he need not believe that the investigator lied when he testified that the accused was given the required warning. Like the convening authority or a board of review, a supervisory authority may differ from the trial court in drawing conclusions of fact from the evidence. Accordingly, there is no establishment of the absence of any warning and therefore, even under the "fruit of the poison tree" theory, the evidence of the accused's incriminating acts need not have been excluded. (Distinguishing ACM 7393, Figueroa, 14 CMR 804). Held also: As a matter of both law and fact, the reference by the investigator to the accused's impending expiration of enlistment did not constitute a threat or inducement of sufficient force to extract an involuntary confession. (Cf. U. S. v. Colbert (No. 401), 2 USCMA 3, 6 CMR 3.) CGCMS 20121, Hoisington (Action of The General Counsel as Supervisory Authority). § 133.2. Sufficiency of warning. At the accused's trial, a pretrial statement was introduced in evidence over defense objection. The investigator who obtained the statement testified that he spoke with the accused in English and explained his rights under UCMJ, Art 31, and thought the accused understood. The accused, who spoke Spanish, testified that he did not understand all of the conversation with the investigator and other witnesses also testified as to the accused's limited ability to understand English. A board of review reversed his conviction on the ground that the admission of the pretrial statement into evidence was error. Held that: - UCMJ, Art 31, requires that an accused who is advised of his rights must actually understand such rights. A reading of the cited Article in English to an accused who has no knowledge or understanding of that language does not constitute compliance with the Article. (Citing U. S. v. Molette (No. 2735), 3 USCMA 674, 14 CMR 92.) -since the board of review determination, as a fact, that the accused did not understand his rights under UCMJ, Art 31, is supported by substantial evidence it is binding upon the Court of Military Appeals. (Citing U. S. v. Wilcher (No. 3900), 4 USCMA 215, 15 CMR 215; U. S. v. Josey (No. 2808), 3 USCMA 767, 14 CMR 185; U. S. v. Sell (No. 1939), 3 USCMA 202, 11 CMR 202.) since the board of review determined as a fact that the accused's pretrial statement was obtained from him without compliance with the requirements of UCMJ, Art 31, admitting such a statement in evidence, over the accused's objection, constituted error justifying reversal of the conviction. Consequently, it was legally correct for the board of review to set aside the findings of guilty and order a rehearing and the board was not required to analyze the evidence aliunde the confession to determine whether it was sufficient to support the findings. (Citing U. S. v. Fisher (No. 3318), 4 USCMA 152, 15 CMR 152; U. S. v. Josey (No. 2808), 3 USCMA 767, 14 CMR 185. Distinguishing Stein v. People of the State of New York, 346 US 156, 97 L ed 1522, 73 S Ct 1077.) [Latimer, J., concurring in result.] United States v. Hernandez (No. 4105), 4 USCMA 465, 16 CMR 39, affirming CM 365300, Hernandez, 13 CMR 339. At the outset of an investigation the accused was properly warned of his rights in compliance with UCMJ, Art 31. He was also properly warned the following day. On both occasions he was told that he need make no statement whatsoever. During the course of the investigation he was told that a portion of the investigation would be conducted by a civilian police officer. At the time he was taken to a civilian police department for a lie detector test he was advised that the civilian policeman was conducting the examination on behalf of, and would submit his report to, the OSI. However, he was not warned of his rights prior to taking the test. After the examination he was again reminded that UCMJ, Art 31, was still in effect and he replied that he knew it by heart and requested that he not be readvised of his rights. He subsequently made a confession encompassing the entire incident under investigation. Held that: – admissions of the accused made to the civilian police officer conducting the lie detector examination and his subsequent confession were properly received in evidence since the accused was properly advised of his rights at the outset of the investigation and there was no indication at any time during the entire investigation that he had forgotten or misunderstood them. a person who is subject to the Code must advise an accused or suspected person of his rights under UCMJ, Art 31, prior to interrogating him or requesting any statement from him when the necessary element of officiality is present (U. S. v. Gibson (No. 1474), 3 USCMA 746, 14 CMR 164; U. S. v. Wilson and Harvey (No. 647), 2 USCMA 248, 8 CMR 48). There is an affirmative duty or requirement that the advice be given. An inquiry as to whether the accused or suspected person is aware of his rights does not constitute compliance with the mandate of UCMJ, Art 31. (Citing ACM 7072, Hawk, 12 CMR 741; CM 364267, Orange, 11 CMR 411.) inherent in the obligation of advising an accused or suspected person of his rights under UCMJ, Art 31, is the premise that the accused must understand the substance of the advice being given. An accused or suspected person must be advised of his rights not only prior to any interrogation or request for a statement regarding an offense, but subsequently at any time it appears that such person has forgotten or does not fully understand his rights. (Citing U. S. v. Molette (No. 2735), 3 USCMA 674, 14 CMR 92; U. S. v. Hernandez (No. 4105), 4 USCMA 465, 16 CMR 39; U. S. v. Gibson (No. 1474), 3 USCMA 746, 14 CMR 164; Black v. State, 46 Tex Crim 590, 81 SW 302; Barth v. State, 39 Tex Crim 381, 46 SW 228; and other cases.) - where two individuals jointly conduct an interrogation it is sufficient if one of the interrogators complies with the mandate of UCMJ, Art 31, and it is immaterial that the second interrogator does not repeat the advice to the accused nor actually hear the advice given. This principle remains true regardless of whether joint investigators are both subject to the Code or whether one of them is subject to it and one of them not subject to it. (Citing CM 361748, Smith, 10 CMR 262; U. S. v. Smith (No. 3262), 4 USCMA 369, 15 CMR 369; ACM 7446, Thompson, 13 CMR 648.) ACM 8900, Radford (1954) 17 CMR 595. On a trial for stealing a sum of money, testimony was introduced to the effect that the accused was called before an officer and told that a complaint had been made against him and that it would have to be investigated. The officer advised the accused he did not have to say anything that would incriminate him. Before any questions were asked of the accused he admitted that he had taken the Held: money. This testimony was offered without objection. Even though no questions were asked of the accused, the testimony as to his statement was open to objection since UCMJ, Art 31(b), requires more than merely telling the suspect that he does not have to answer incriminating questions. It grants the right to remain silent and to refuse to answer any question at all regarding the offense, not merely the incriminatory ones. Accordingly, the warning given the accused herein was insufficient compliance with Art 31(b). (Citing U. S. v. Williams (No. 1212), 2 USCMA 430, 9 CMR 60. Distinguishing CGCM 9790, Burlarley, 10 CMR 582 and CGCM 9795, Karl, 11 CMR 654.) CGCMS 20052, Doyle (1954) 17 CMR 542. Where an accused has been informed of his rights under Art 31 and is aware both of his right to make no statement and to testify concerning the circumstances leading to the investigation precipitating the statement, the fact that the record does not specifically show that he was informed of the nature of the offense of which he was suspected does not constitute prejudicial error. (Citing U. S. v. O'Brien (No. 1915), 3 USCMA 105, 11 CMR 105.) ACM S-9711, Holbrook, 17 CMR 868. To establish the competency of a pretrial statement by the accused an OSI agent testified that he and another agent interviewed the accused and that at the outset he advised the accused of his rights under UCMJ, Art 31. He said he could not recall ever seeing a blue card containing a reprint of certain articles of the Uniform Code of Military Justice and that he had never used one in his interrogations. The other agent was called by the defense as a hostile witness. Most of his testimony agreed with that of the other agent. It was inconsistent in that he stated he had read UCMJ, Art 31 to the accused. However, he said he could not testify that the other agent had not also done so. He further testified that he read the Article from a blue card which he had in his credentials and that the other agent also had a similar card. The accused testified that the Articles of War and the Uniform Code of Military Justice had not been read to him and that he had never read any portion of the Code himself prior to the time he was interrogated by the agents. The accused had been in the Air Force forty-seven months. He had a bachelor of science degree in education and he had instructed in a high school on the subject of the Constitution and history. Held: Except as arises from the inconsistencies noted in the two agents' testimony and the inconsistency between their testimony and the accused's, there is no basis in the evidence for doubting the credibility of either. On the other hand, the accused's length of military service and his degree of higher education in regard to such matters as the Constitution, render improbable and inherently incredible his testimony that prior to the interrogation he had never had read to him the Uniform Code of Military Justice and had never read any portions of it himself. Under such circumstances the court was fully justified in rejecting his testimony and accepting that of either of the agents, either of which would establish that the accused's pretrial statement was competent evidence. Held also: Any error in limiting the cross-examination of the agent who testified for the prosecution for the purpose of impeaching him was harmless since the other agent's testimony was credible and convincing, while the accused's testimony was improbable and incredible. Thus, even if the first agent had been impeached, the testimony of the other agent would have established the admissibility of the accused's pretrial statement. (Citing ACM 6071, Dunn, 9 CMR 763; ACM S-5206, Nelson, 9 CMR 736; ACM 3109, Cauley (BR), 3 CMR (AF) 746.) ACM 10050, Graalum (1955) 19 CMR Effect of failure to advise accused of nature of offense of which he is suspected where he is aware of its nature, see United States v. Johnson, infra § 133.7. § 133.3. Civilian officials. The accused notified both American and French authorities of the death of his wife, as the result of a brutal beating. The French authorities, having primary jurisdiction over the instant case, took the accused into custody. During the period he remained under French control he made four statements although at no time was he advised of his rights under Art 31. The first statement was made to the commissioner of French police who took charge of the investigation when he arrived at the accused's apartment where the alleged homicide took place. The statement was made through an interpreter normally employed by the American military police and was made in the presence of a military policeman. However, the latter took no part in the questioning of the accused. The second statement was made to the commissioner at a French police station again through an American interpreter. The last two statements were made to a French judge. The accused was released to Military authorities for trial by court-martial. Held: The four statements made by the accused to the French officials were admissible at the court-martial trial, inasmuch as the French authorities did not, in any sense, act as instruments of the American military establishment when interrogating the accused. Accordingly, there was no duty to warn the accused of his rights prior to such statements. The "official investigation" referred to in par 148, MCM, 1951, must be taken to mean not only an official inquiry, but an official military investigation as well. If persons not subject to the Code, such as civilian law enforcement authorities, conduct an interrogation or request a statement in furtherance of any military investigation, or in any sense as an instrument of the military, then the duty arises to furnish sound advice concerning the provisions of Art 31. Otherwise they are not required to do so, and their failure will not operate to deprive a court-martial of any statement they may secure. United States v. Grisham (No. 4474), 4 USCMA 694, 16 CMR 268, affirming CM 365320, Grisham, 13 CMR 486. See ACM 9035, Bishop and Koch, supra § 115.1. § 133.7. Official nature of investigation. The accused was convicted of desertion and missing movement. After his surrender an officer who had served in his organization |