Misc Pub 27-8 Legal Handbook Commander’s 2019
• Investigations related to sex offenses
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ArmyDemLogProgramBriefing-Jan17
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- • Off the record statements are not allowed
- Return to Table of Contents 113
| • Investigations related to sex offenses. With limited exceptions, evidence of an alleged victim’s sexual behavior or sexual predisposition is not relevant (MRE 412). • Polygraph Tests. The person involved in the polygraph test must consent to the use of any evidence regarding the results, or regarding the taking or refusing of a polygraph. • Relevance. Evidence must be relevant. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. • Off the record statements are not allowed. Findings and recommendations cannot be based on statements not contained in the report of investigation. • Statements regarding disease or injury. A Soldier cannot be required to sign a statement relating to the origin, incurrence, or aggravation of a disease or injury. Any such statement against interest is invalid under 10 USC 1219 and may not be considered on the issue of the origin, incurrence, or aggravation of the disease or injury. IOs generally do not have subpoena power to compel witnesses to appear and testify. Commanders and supervisors may order military personnel and civilian employees to appear and testify. No military witness can be compelled to incriminate himself or herself (UCMJ Article 31) or to make a statement or produce evidence that is not material to an issue that might tend Return to Table of Contents 113 to degrade them. Before any Soldier is ordered to appear or testify, the legal advisor should be consulted. No witness not subject to the UCMJ can be required to make a statement or produce evidence that would violate the 5th Amendment to the US. Constitution. If a witness invokes UCMJ Article 31 or the 5th Amendment, the IO must stop questioning and contact the legal advisor. The legal advisor should assist the IO in determining if the invocation is well taken. This may require sending the witness to see a legal assistance or Trial Defense Service attorney for advice. If the IO, in consultation with the legal advisor, determines that the invocation is not well taken, the IO may order military and civilian employee witnesses to testify, or they may contact the witness’s supervisor for assistance. Weingarten rights maybe necessary for bargaining unit member employees. If a civilian employee, who is a member of a certified bargaining unit represented by a labor organization, reasonably believes that he or she might be disciplined as a result of an interview, and requests union representation, then the employee is entitled to have a union representative present during the interview. If a bargaining unit member requests union representation, the IO should consult with the legal advisor. The IO’s options are to grant the request, discontinue the interview, or offer the employee the choice between continuing the interview unaccompanied by a union representative and having no interview at all. A confession or admission obtained by unlawful coercion or inducement likely to affect its truthfulness will not be accepted as evidence. If members of the Armed Forces acting in their official capacity conductor direct a search that they know is unlawful, evidence obtained as a result of that search may not be accepted or considered by an IO or board. Such evidence is acceptable only if it can reasonably be determined by the legal advisor or, if none, by the IO or president that the evidence would inevitably have been discovered. In all other cases, evidence obtained as a result of any search or inspection maybe accepted, even if it has been or would be ruled inadmissible in a criminal proceeding. This exclusionary provision is applicable only when a respondent is involved, in other words, during a formal investigation. Download 4.49 Mb. Share with your friends:
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