Fillable Rights Warning Procedure/waiver Certificate - Apd

PART II - RIGHTS WARNING PROCEDURE

THE WARNING

WARNING - Inform the suspect/accused of:

can be a civilian you arrange for at no expense to the Government or a military

lawyer detailed for you at no expense to you, or both."

Your official position.

Nature of offense(s).

- or -

The fact that he/she is a suspect/accused.

(For civilians not subject to the UCMJ) You have the right to talk privately to a

RIGHTS - Advise the suspect/accused of his/her rights as follows:

lawyer before, during, and after questioning and to have a lawyer present with

"Before I ask you any questions, you must understand your rights."

you during questioning. This lawyer can be one you arrange for at your own

expense, or if you cannot afford a lawyer and want one, a lawyer will be

"You do not have to answer my questions or say anything."

appointed for you before any questioning begins."

"Anything you say or do can be used as evidence against you in a

criminal trial."

"If you are now willing to discuss the offense(s) under investigation,

(For personnel subject to the UCMJ) "You have the right to talk

with or without a lawyer present, you have a right to stop answering

privately to a lawyer before, during, and after questioning and to

questions at any time, or speak privately with a lawyer before

have a lawyer present with you during questioning. This lawyer

answering further, even if you sign a waiver certificate."

Make certain the suspect/accused fully understands his/her rights.

THE WAIVER

"Do you want a lawyer at this time?"

"Do you understand your rights?"

(If the suspect/accused says "yes," stop the questioning until he/she has a

(If the suspect/accused says "no," determine what is not understood, and if

lawyer. If the suspect/accused says "no," ask him/her the following question.)

necessary repeat the appropriate rights advisement. If the suspect/accused

says "yes," ask the following question.)

"At this time, are you willing to discuss the offense(s) under investigation and

make a statement without talking to a lawyer and without having a lawyer present

"Have you ever requested a lawyer after being read your rights?"

with you?" (If the suspect/accused says "no," stop the interview and have him/her

(If the suspect/accused says "yes," find out when and where. If the request

read and sign the non-waiver section of the waiver certificate on the other side of

was recent (i.e., fewer than 30 days ago), obtain legal advice whether to

this form. If the suspect/accused says "yes," have him/her read and sign the

continue the interrogation. If the suspect/accused says "no," or if the prior

waiver section of the waiver certificate on the other side of this form.)

request was not recent, ask him/her the following question.)

SPECIAL INSTRUCTIONS

2. If the suspect/accused was questioned as such either without being

WHEN SUSPECT/ACCUSED REFUSES TO SIGN WAIVER CERTIFICATE: If

advised of his/her rights or some question exists as to the propriety of the

the suspect/accused orally waives his/her rights but refuses to sign the waiver

first statement, the accused must be so advised. The office of the serving

certificate, you may proceed with the questioning. Make notations on the

Staff Judge Advocate should be contacted for assistance in drafting the

waiver certificate to the effect that he/she has stated that he/she understands

proper rights advisal.

his/her rights, does not want a lawyer, wants to discuss the offense(s) under

investigation, and refuses to sign the waiver certificate.

NOTE: If 1 or 2 applies, the fact that the suspect/accused was advised

accordingly should be noted in the comment section on the waiver

IF WAIVER CERTIFICATE CANNOT BE COMPLETED IMMEDIATELY: In all

certificate and initialed by the suspect/accused.

cases the waiver certificate must be completed as soon as possible. Every

effort should be made to complete the waiver certificate before any

questioning begins. If the waiver certificate cannot be completed at once, as

WHEN SUSPECT/ACCUSED DISPLAYS INDECISION ON EXERCISING HIS

in the case of street interrogation, completion may be temporarily postponed.

OR HER RIGHTS DURING THE INTERROGATION PROCESS: If during the

Notes should be kept on the circumstances.

interrogation, the suspect displays indecision about requesting counsel (for

example, "Maybe I should get a lawyer."), further questioning must cease

immediately. At that point, you may question the suspect/accused only

PRIOR INCRIMINATING STATEMENTS:

concerning whether he or she desires to waive counsel. The questioning may

1. If the suspect/accused has made spontaneous incriminating

not be utilized to discourage a suspect/accused from exercising his/her rights.

statements before being properly advised of his/her rights he/she

(For example, do not make such comments as "If you didn't do anything

should be told that such statements do not obligate him/her to answer

wrong, you shouldn't need an attorney.")

further questions.

COMMENTS (Continued)

REVERSE OF DA FORM 3881

APD LC v2.02ES

Rights Warning Procedure/waiver Certificate - Apd - Army Page 2

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