Section 400.625 Warnings About Rights

Section 400.625  Warnings About Rights

a)         General.

A statement obtained in violation of this Section is involuntary and shall be

treated under Section 400.620.

b)         Definitions.

As used in this Section:

1)         "Person

Subject to the Code" means a person acting as a knowing agent of a

military unit or of a person subject to the Code.

2)         "Interrogation"

means any formal or informal questioning in which an incriminating response

either is sought or is a reasonable consequence of that questioning.

c)         Warnings

Concerning the Accusation, Right to Remain Silent, and Use of Statements.

A

person subject to the Code

who is required to give warnings under Code

Section 31

may not interrogate or request any statement from an accused or a

person suspected of an offense without first

:

1)

informing

the accused or suspect of the nature of the accusation;

2)

advising

the accused or suspect that the accused or suspect has the right to remain

silent;

and

3)

advising

the accused or suspect that any statement made may be used as evidence against

the accused or suspect in a trial by court-martial.

(Code Section 31(b))

d)         Counsel

Rights and Warnings

1)         General.

When evidence of a testimonial or communicative nature within the meaning of

the Fifth Amendment to the U.S. Constitution either is sought or is a

reasonable consequence of an interrogation, an accused or a person suspected of

an offense is entitled to consult with counsel as provided in subsection (d)(2),

to have counsel present at the interrogation, and to be warned of these rights

prior to the interrogation if:

A)        The

interrogation is conducted by a person subject to the Code who is required to

give warnings under Code Section 31 and the accused or suspect is in custody,

could reasonably believe himself or herself to be in custody, or is otherwise

deprived of his or her freedom of action in any significant way; or

B)        The

interrogation is conducted by a person subject to the Code act

f:

A)        The

interrogation is conducted by a person subject to the Code who is required to

give warnings under Code Section 31 and the accused or suspect is in custody,

could reasonably believe himself or herself to be in custody, or is otherwise

deprived of his or her freedom of action in any significant way; or

B)        The

interrogation is conducted by a person subject to the Code acting in a law

enforcement capacity, or the agent of such a person, the interrogation is

conducted subsequent to the preferral of charges, and the interrogation

concerns the offenses or matters that were the subject of the preferral of the

charges.

2)         Counsel.

When a person entitled to counsel under this subsection (d) requests counsel,

a judge advocate or an individual certified in accordance with Code Section

27(b) shall be provided by the State at no expense to the person and without

regard to the person's indigency or lack of indigency before the interrogation

may proceed.  In addition to counsel supplied by the State, the person may

retain civilian counsel at no expense to the State. Unless otherwise provided

by regulations of the Adjutant General, an accused or suspect does not have a

right under this subsection (d) to have military counsel of his or her own

selection.

e)         Presence

of Counsel

1)         Custodial

Interrogation.  Absent a valid waiver of counsel under Section 400.610(b), when

an accused or person suspected of an offense is subjected to custodial interrogation

under circumstances described in subsection (d)(1)(A), and the accused or

suspect requests counsel, counsel must be present before any subsequent

custodial interrogation may proceed.

2)         Post-Preferral

Interrogation

todial

Interrogation.  Absent a valid waiver of counsel under Section 400.610(b), when

an accused or person suspected of an offense is subjected to custodial interrogation

under circumstances described in subsection (d)(1)(A), and the accused or

suspect requests counsel, counsel must be present before any subsequent

custodial interrogation may proceed.

2)         Post-Preferral

Interrogation.  Absent a valid waiver of counsel under Section 400.610(b), when

an accused or person suspected of an offense is subjected to interrogation

under circumstances described in subsection (d)(1)(B), and the accused or suspect

either requests counsel or has an appointed or retained counsel, counsel must

be present before any subsequent interrogation concerning that offense may

proceed.

f)         Exercise

of Rights

1)         The Privilege

Against Self-Incrimination.  If a person chooses to exercise the privilege

against self-incrimination under this Section, questioning must cease

immediately.

2)         The Right

to Counsel.  If a person subjected to interrogation under the circumstances

described in subsection (d)(1) chooses to exercise the right to counsel,

questioning must cease until counsel is present. (Il. Mil. R. Evid. 305)