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