the adoption of the presently effective statute, which was enacted in 1956. This statute provides, in pertinent part:

... an enlisted member of the Army, Navy, Air Force, Marine Corps or Coast Guard who

(1) deserts;

(2) is absent from his organization, station or duty for more than one day without proper authority, as determined by competent authority;

(3) is confined for more than one day while awaiting trial and disposition of his case, and whose conviction has become final;

(4) is confined for more than one day under a sentence which has become final; or

(5) is unable for more than one day, as determined by competent authority, to perform his duties because of intemperate use of drugs or alcoholic liquor, or because of disease or injury resulting from his misconduct;

is liable, after his return to full duty, to serve for a period which, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted or inducted.

The committee hearings and other statements respecting this enactment reveal two additional bases for the 1956 edition of the lost time rule. The permissive Navy statute discussed above had not worked well. Under it, if a man wished to make up time lost, he had to apply for the right to do so and to have the application approved before the expiration date of his enlistment. Cases also arose where men, considered deserving of retention or of earning an honorable discharge by further service, were still under confinement when their enlistments expired and were therefore not able to make application. Making all persons liable to make up lost time solved the difficulty. The second additional basis for the new provision was the idea that removing the man's right to choose whether to make up lost time would give the rule a deterrent effect.24 It was thought that the young man whose greatest ambition is to get out of the service would not be so likely to engage in behavior which could have the result of extending his enlistment.

Thus, it appears that the basic rationale of the lost time statute is, first, to benefit the man who has made a mistake by allowing him to complete his obligated service, and, second, to deter behavior resulting in lost time. Deterrence is especially applicable to absences resulting from dis

23. Act 24 July 1956, ch. 692, 70 Stat. 631 (1956) (now 10 U.S.C. 972).

24. Hearing on H.R. 8407 before the Subcommittee of the Senate Committee on Military Affairs, 84th Cong., 2d Sess. 7894, 7907 (1956); S. Rep. No. 2549, 84th Cong., 2d Sess. (1956). See also Garraty, Effects of Time Lost, 15 JAG J. 123 (Sept. 1961).

eases and injuries due to misconduct. It may also help prevent willful self-injury and promote safety by encouraging service members to exercise reasonable care.

LOSS OF TIME-LONGEVITY AND RETIREMENT

The rules as to whether time lost because of injuries due to misconduct, disease due to intemperate use of alcohol or drugs, unauthorized absence, desertion or confinement can be creditable time for longevity and retirement purposes have developed on a decisional rather than a statutory basis. The various statutes providing Navy personnel with such benefits do not specify limitations in these areas as to what time may be included as service.25

A leading decision of the Comptroller General on this question held that when an enlisted member of the Army was in a nonduty status within the loss of pay and lost time provisions then in effect, he was not "serving" within the meaning of the longevity statute applicable at the time.26 This position was affirmed in several later cases.27 Another leading decision made the reasoning behind the noncreditability of lost time for longevity computations more explicit,28 postulating that longevity pay is a reward for long and faithful service and that it would be contrary to the spirit and purpose of the longevity provisions should members receive benefits by obtaining credit for periods when they were not ready to serve because deliberately absent or because physically unable to serve by reason of their own misconduct. The conclusion was that "in the absence of express language clearly authorizing the inclusion of periods of that character, such an intention may not be imputed to the Congress." This reasoning also underlies the rule that such periods may not be included for retirement purposes.29

Congress has, in effect, ratified this interpretation by its continued silence as to what is creditable time in most of the statutes granting longevity and retirement benefits. When it has spoken on creditable service, it has directed that misconduct time not be creditable. For example, in Army and Air Force enlisted retirement statutes the proviso has been included that no time required to be made up under 10 U.S.C. 972 may be included in the computation.30

(Continued on page 96)

25. See, for example, 10 U.S.C. 6321-32. 26. 2 Comp. Gen. 162 (1922).

27. 20 Comp. Gen. 218 (1940); 4 Comp. Gen. 336 (1924); 3 Comp. Gen. 507 (1924).

28. 22 Comp. Gen. 759 (1943). 29. 39 Comp. Gen. 844 (1960). 30. 10 U.S.C. 3925, 8925.

ILITARY LAW HAS been greatly affected

by the landmark case of United States v. Tempia, which incorporates the United States Supreme Court decision of Miranda v. Arizona 2 into military law. Law enforcement agents must now explicitly advise a suspect held for custodial interrogation of his right to consult an attorney, either retained or appointed, prior to interrogation and to have the attorney present during interrogation. To obtain a statement from any suspect as a result of a custodial interrogation without first warning him of these rights constitutes a deprivation of the suspect's right against self-incrimination and renders such statement inadmissible in a court of law. This article will discuss in some detail the re

Lieutenant Wheeler is currently assigned to the Military Justice Division, Office of the Judge Advocate General. He holds the B.S. Degree from Loyola University of Chicago and the LL.B. Degree from the John Marshall Law School. He is a member of the American Bar Association and is currently on the Board of Directors of the Judge Advocates Association. Lieutenant Wheeler is admitted to practice before the Supreme Court of Illinois and the U.S. Court of Military Appeals.

1. 16 USCMA 629, 37 CMR 249 (1967).

2. 384 U.S. 436 (1966).

strictions placed upon the admissibility of outof-court statements by an accused as a result of the Supreme Court's Miranda decision, the Court of Military Appeals' Tempia decision and other military cases. Some of the topics to be discussed are: the dimensions of the Miranda and Tempia decisions, the content of the warnings required by those two decisions, the concept of custodial interrogation, the meaning of a "knowing and intelligent" waiver, and certain apparent exceptions to the rule against the admissibility of statements obtained without first warning an accused of his right to counsel prior to and during interrogation.

MIRANDA v. ARIZONA

Mr. Chief Justice Warren summarized the Miranda v. Arizona decision as follows:

The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for procedural safeguards

to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

It is of primary importance to observe, first off, that the mandates of the Miranda decision are constitutional in nature. Fifth and Sixth Amendment constitutional rights are in question rather than the Supreme Court's supervisory power over rules of evidence in the federal courts. Mr. Justice Clark, in his dissent, observed that "the Court fashions a constitutional rule that the police may engage in no custodial interrogation without additionally advising the accused he has a right under the Fifth Amendment to the presence of counsel during interrogation and that, if he is without funds, counsel will be furnished him." Mr. Justice Harlan refers to the new guidelines for in-custody interrogations as "the Court's new constitutional code of rules for confessions." 5

Thus, the Sixth Amendment's right to consult with counsel is now a constitutional procedural safeguard, securing a suspect's Fifth Amendment privilege against self-incrimination. A suspect must first waive his right to counsel before he can waive his right to incriminate himself. Miranda has raised the waiver of counsel to the status of a prerequisite interlocking the Fifth and Sixth Amendments in the law relative to confessions.

It is important to note also that the requirements of Miranda apply only to custodial interrogations, defined by Chief Justice Warren as any "questioning initiated by law enforcement officers after a person has been taken into

3. Id. at 444-45.

4. Id. at 500.

5. Id. at 504.

custody or otherwise deprived of his freedom of action in any significant way." The status of custodial interrogation is thus a condition precedent to the Miranda requirements. The warning need not be given to a suspect who spontaneously volunteers a statement. Also, general on-the-scenes questioning by law enforcement agents can be conducted without a warning being given to bystanders.

In custodial situations, all suspects must be explicitly advised, prior to interrogation, of their right to counsel, that is, of their right to retain counsel of their choice, if they desire, or to have counsel provided at public expense if indigent. Mr. Chief Justice Warren has made it clear that any suspect must be clearly apprised of his right to counsel and that knowledge of such right on the part of the suspect will not be inferred. He has said, "We will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation; a warning is a clear-cut fact.""

Miranda prohibits an interrogator from proceeding once a suspect says he desires an attorney. At that moment the interview must cease, and the suspect must be given the opportunity to obtain and consult with an attorney and have him present during subsequent questioning. Law enforcement agents must respect the suspect's desire for counsel because "any statement taken after a person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise." s

Before a prosecutor can introduce an out-ofcourt statement of a defendant into evidence he must demonstrate that the defendant was apprised of his right to counsel and either exercised that right or knowingly and intelligently waived same. A claimer of the right may be asserted by a suspect at any time during interrogation and is effective from the time of assertion. The Chief Justice pointed out that there is no waiver, just because "the individual answers some questions or gives some information on his own prior to invoking his right to remain silent when interrogated. . . . A valid waiver will not be presumed simply from the

6. Id. at 444.

7. Id. at 468-69.

8. Id. at 474.

9. Id. at 475-76.

silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained." 10 The Court went on to hold that "the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that an accused did not validly waive his rights.... Moreover, any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege." 11

Miranda holds that there is no distinction between inculpatory and exculpatory statements; moreover, distinctions between between statements which are complete confessions and those which amount to admissions of an element of an offense have been eliminated. A prosecutor can no longer impeach an accused with exculpatory statements unless a proper Miranda warning was given. The Chief Justice observed that "if a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution." 12

The Chief Justice spoke harshly about the investigative tactics espoused in modern police manuals, citing Inbau and Reed, Criminal Interrogation and Confessions (1962); Inbau and Reed, Lie Detection and Criminal Interrogation (3rd ed. 1953); and O'Hara, Fundamentals of Criminal Investigations (1956). Some of the methods condemned were "the reverse line-up" where an individual is accused of more serious crimes than were committed so that he might admit to the lesser one he is being held for; the false line-up identification where the victim positively identifies a suspect when he is not sure; advising a suspect that he does not need an attorney if he is telling the truth and he will be able to save the expense; and telling an accused if he does not speak the police can only believe he has something to hide.13

The Chief Justice, to support his reasoning in Miranda that the police can apprehend criminals without violating citizens' constitutional rights, cited the interrogation practices of the FBI. The policy of the FBI prior to the Miranda decision was to advise the suspect of his right to silence, that he could consult with counsel or anyone else, and that counsel would be provided if he was indigent. The former FBI warning is patently inadequate under the new standard, but the Court nevertheless used the FBI practices to support its reasoning.

14

10. Id. at 475-76.

11. Id. at 476.

12. Id. at 477.

13. Id. at 453-54. 14. Id. at 484-85.

The Uniform Code of Military Justice and the decisions of the Court of Military Appeals also were cited by the Chief Justice to support his view that a suspect in custody need not be denied the right to consult with counsel.15 The rights of an accused subject to the Uniform Code of Military Justice are codified in Article 31, UCMJ, 10 U.S.C. 831, which provides that an accused must be informed of the nature of the accusation against him, advised that he need not make any statements regarding any questions relative to the offense of which he is accused or suspected, and advised that if he does make any statement, such statement can be used as evidence against him in a trial by court-martial. The Code does not mention the right of a suspect during an investigation to consult with counsel, but a substantial body of case law to that effect had been established by the Court of Military Appeals prior to United States v. Tempia. The Chief Justice in Miranda left the question of the adequacy of the military's interrogation procedures unsettled because an Article 31 warning per se does not meet the standards required by Miranda; however, the Court had, by citing the Uniform Code of Military Justice to support its views in Miranda v. Arizona, implied that giving a basic Article 31 warning to a suspect subject to the Code meets constitutional standards.

UNITED STATES ▼. TEMPIA

16

In United States v. Tempia, the Court of Military Appeals speaking through Judge Ferguson held that the principles enunciated by the Supreme Court in Miranda v. Arizona apply to the military interrogation of criminal suspects if the trial is held after 13 June 1966. Judge Ferguson did not cover all the aspects of the Miranda decision, but he said that the Miranda warning and the concept of custodial interrogations are applicable to the military. Tempia expressly overruled United States v. Wimberley 18 in which the Court of Military Appeals had set forth the following test for the admissibility of an accused's out-of-court statement: "The test for admissibility of any pretrial statement is whether the accused was properly advised of his rights under Article 31, and that he made the statement voluntarily." " Judge Ferguson said that the formula laid down in Miranda is "constitutional in nature" meaning "concrete constitutional guidelines" 18 are established. (Emphasis that of the Court of Military Appeals.)

15. Id. at 489.

16. 16 USCMA 3, 36 CMR 159 (1967).

17. Id. at 9, 36 CMR at 165.

18. 16 USCMA at 635, 37 CMR at 255.

Judge Ferguson's opinion was bottomed on the adequacy of the warning under the formula set forth in Miranda. It holds that Miranda requires that an accused subject to the Code be advised that he is entitled to counsel and that he has the right to have his attorney, retained or appointed, present during the interrogation. The failure to warn a suspect of the above-mentioned rights renders any statement inadmissible and the admission into evidence of such is prejudicial error requiring reversal.

The Court of Military Appeals condemned the policy of investigative agents' referring an accused who has requested counsel during an interview to the Staff Judge Advocate, who would not enter into a client-attorney relationship (but would only repeat Article 31, UCMJ) because of departmental instructions not to do so until the investigation was completed and charges preferred. Judge Ferguson reasoned that the military could easily appoint an officerlawyer to act as counsel for an accused during an investigation because administrative change is all that is required. The judge's view is that the military attorney's role is not that of an impartial arbiter, but that of an advocate, and the earlier he is on the scene the better.

Also, the court accepted the definition of custodial interrogation set forth by Mr. Chief Justice Warren in Miranda,1o namely, that custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 20 The court held in Tempia that the accused was in the status of custodial interrogation when he was summoned to appear at the OSI investigator's office because at that moment he was deprived of his freedom of action in a significant way. Judge Ferguson said that the accused could not be held to have waived his rights because the government had failed to carry its burden to prove a "knowing and intelligent waiver" by the accused.21 The court accepted the following language of Miranda relative to the concept of waiver: "If the interrogation continues without the presence of an attorney and

19. 384 U.S. at 444.

20. 16 USCMA at 636, 37 CMR at 256.

21. In a recent case, United States v. Stanley, 17 USCMA 384, 38 CMR 182 (1968), the Court of Military Appeals held that no amount of circumstantial evidence can demonstrate that the accused should have known of his right to appointed counsel. The Court held, in short, that if an extrajudicial statement given without the advice of counsel is to be admitted into evidence, the fact that a complete Miranda-Tempia warning was given must appear on the face of the record, along with affirmative evidence that the accused knowingly, voluntarily and intelligently waived his right to counsel.

a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." 22

In his concurring opinion in Tempia, Judge Kilday pointed out that the Miranda decision is binding on the Court of Military Appeals, "a subordinate Federal court," which has "no power to reverse, amend, or void any of the holdings of Miranda." 23 Judge Kilday agreed with Judge Ferguson that "the Supreme Court was applying constitutional provisions and not establishing a rule of evidence or procedure in accordance with its statutory powers." 24

Judge Quinn, dissenting in Tempia, expressed the view that since the Supreme Court in Miranda had such esteem for the interrogation practices in the military the Supreme Court must have been satisfied with military interrogation procedures. Judge Quinn said that "the Supreme Court was satisfied [that the military] provided effective counter-balance to the inherent pressures of in custody interrogation, and assured the individual complete freedom to decide whether to speak or remain silent." 25 In short, Judge Quinn believed that the military interrogation procedures were one of the other means referred to by the Chief Justice in Miranda as being acceptable, and besides, he saw the Tempia situation as similar to an accused walking into a police station and confessing.

APPLICATION OF THE TEMPIA RULE

The next case decided by the Court of Military Appeals dealing with a suspect's right to consult with counsel was United States v. McCauley." The Court of Military Appeals reversed the Board of Review because a Federal Bureau of Investigation agent failed to warn McCauley of his right to the presence of an attorney either retained or appointed during interview. Judge Kilday termed the warning given McCauley “the very advisory defect which brought about reversal in the Miranda case, and we are required to accord the omission the same dignity here." " Also, Judge Kilday adopted the opinion of Judge Ferguson that the Miranda and Tempia cases would not have a severe impact on the administration of military justice because "there is in

22. 16 USCMA at 638, 37 CMR at 258. 23. Id. at 641, 37 CMR at 261. 24. Ibid.

25. Id. at 643, 37 CMR at 263. 26. 17 USCMA 81, 37 CMR 345 (1967). 27. Id. at 85, 37 CMR at 349.