DA FM 3881
Rights Warning/Waiver Certificate
DA FM 3881
191-376-5127
• Task: Advised suspect of Art 31-Miranda rights
• Conditions: Given a suspect or accused, a blank
DA 3881 or a GTA 19-6-6 and access to CID Reg
195-1
• Standards: You must, without error, advise suspect
of his/her Miranda rights and prepare the DA
3881
Front
Back
RIGHTS WARNING PROCEDURE/WAIVER CERTIFICATE
PART II - RIGHTS WARNING PROCEDURE
For use of this f orm, see A R 1 9 0 -3 0 ; the proponent agency is ODCSOPS
THE WA RNING
DATA REQUIRED BY THE PRIVACY ACT
1.
AUTHORITY:
PRINCIPAL PURPOSE:
ROUTINE USES:
DISCLOSURE:
1.
5.
Title 10, United States Code, Section 3012(g)
To provide commanders and law enforcement officials with means by which information may be accurately identified.
Your Social Security Number is used as an additional/alternate means of identification to facilitate filing and retrieval.
Disclosure of your Social Security Number is voluntary.
LOCA TION
2.
NA ME (Last, First, MI)
DA TE
8.
3.
TIME
4.
FILE NO.
2.
WA RNING - Inform the suspect/accused of:
can be a civilia n you a rrange for at no expe nse to the Gov ernment or a m ilitary
a.
Your offic ial p ositi on.
law yer detail ed for you at no expe nse to you, or both."
b.
Nature of of fense(s).
c.
The fact that he/she i s a suspect/accused.
law yer b efore, during, and af ter que stionin g and t o have a law ye r prese nt w ith
" Before I ask you any qu estions, yo u must unde rstand your rights."
you during questio ning. T his law yer can be one you ar range f or at y our ow n
a.
" You do not have to a nsw er my questions or say a nything."
expense, or if y ou canno t afford a law ye r and w a nt one, a law yer w ill be
b.
" A nything you say or do can be use d as evide nce agains t you in a
appoint ed for you b efore any qu estion ing be gins."
criminal trial."
ORGA NIZA TION OR ADDRESS
c.
6.
SSN
7.
- or (For civilia ns not su bject to the UCMJ) You h ave th e righ t to t alk pr ivatel y to a
RIGHTS - A dvise the sus pect/accused of his/h er rights as follow s:
d.
(For personnel subjec t to th e UCMJ) " You h ave the right to talk
" If you are no w w illin g to dis cuss the offense (s) unde r invest igation,
w ith or w ith out a l aw yer p resent, you ha ve a ri ght to stop an sw ering
privately to a law yer be fore, during , and after questi oning and to
GRA DE/STA TUS
questions at a ny time, or spea k privat ely w ith a law ye r before
have a law yer present w ith y ou duri ng ques tioning . This law yer
answ ering further, even if you sig n a w aiv er certi ficate."
Make certain the suspect /accused fu lly underst ands his/he r rights.
PART I - RIGHTS WAIVER/NON-WAIVER CERTIFICATE
THE WA IV ER
Section A. Rights
The investig ator w hose name appe ars below told me th at he/she is w ith th e United S tates A rmy
and w anted to q uestion me abo ut the follow i ng offe nse(s) of w hic h I am
suspected/accused:
" Do you unde rstand you r rights?"
" Do you w ant a law yer at this time?"
(If the suspect /accused say s " no," dete rmine w hat i s not unders tood, and if
(If the suspect/accus ed says " yes," sto p the questioning until he/she has a
necessary repeat th e appropriate r ights advisemen t. If the suspe ct/accused says
law yer. If th e suspect/acc used says " no ," ask him/he r the follow i ng question.)
" yes," ask th e follow ing question.)
Before he/she aske d me any q uestions a bout the o ffense(s), how ever, he/she mad e it clear to me tha t I have t he follow i ng rights:
" A t this time, a re you w illing t o discus s the of fense(s) under i nvestiga tion and
1.
I do not have to answ er any q uestion or say a nything.
2.
A nything I say or do c an be used as evidence against me in a crimi nal trial.
" Have you ever requested a law yer after bein g read you r rights?"
make a s tatement w ithout talking to a la w yer and w ithout having a law yer
3.
(For personn el subject othe UCMJ
(If the suspect/accus ed says " yes," fin d out w hen and w he re. If the request
present w i th you?" (If the suspect/acc used says " no," sto p the interview and
w as recent (i.e., few er tha n 3 0 days ago), obtain legal advic e w het her to
have him/her re ad and sign th e non-w aiver s ection of the w aiver certifi cate on
continue the i nterrogat ion. If t he suspec t/accused says " no ," or if the prior
the other side of this form. If t he suspect/accus ed says " yes," h ave him/her read
request w as no t recent , ask hi m/her th e follow ing ques tion.)
and sign the w ai ver sec tion of the w a iver ce rtifica te on t he othe r side of this
I have the right to talk privat ely to a law ye r befor e, duri ng, and after questio ning an d to ha ve a la w yer pr esent w ith me
during questioning. This law yer can be a civilia n law yer I arran ge for a t no exp ense to the Gove rnment o r a mili tary law yer deta iled for me at n o expens e to me,
or b oth.
- or -
form.)
(For civi lians no t subjec t to the UCMJ) I have the righ t to ta lk priv ately t o a law yer bef ore, du ring, a nd afte r quest ioning and to have a law yer present w ith
me during questionin g. I und erstand that thi s law yer can be one that I arran ge for a t my ow n expense , or if I cannot afford a law yer and w an t one, a law yer
SPECIA L INSTRUCTIONS
w ill be appoi nted f or me before any q uestio ning b egins.
4.
If I am now w illing to d iscuss t he offen se(s) un der inve stigatio n, w ith or w itho ut a law yer pres ent, I h ave a ri ght to s top answ ering qu estions at any t ime, or
speak privately w ith a l aw yer be fore ans w ering f urther, even if I sign t he w aive r below .
5.
WHEN SUSPECT/A CCUSED REFUSES TO SIGN WA IV ER CERTIFICA TE: If the
COMMENTS (Continue on reverse side)
2 . If the suspect /accused w as questioned as such eith er w ithout b eing advised
suspect/accused orally w aiv es his/her r ights but re fuses to sig n the w aiver
of his/her rights or some question exists as to th e propri ety of t he first
certifica te, you may pr oceed w ith the questi oning. Make no tations on the
statement, the accused m ust be so advised. T he office of the ser ving Staff
w aiver certific ate to t he effec t that h e/she ha s stated that he /she und erstands
Judge A dv ocate s hould b e conta cted fo r assis tance i n draft ing the proper
his/her rig hts, does n ot w ant a l aw yer, w ant s to discus s the offen se(s) under
rights a dvisal.
investigati on, and refuses to sign the w aiv er certi ficate.
Section B. Waiver
NOTE:
I understand my rights as stated above. I am now w illing to discu ss the o ffense(s ) under investig ation an d make a stateme nt w itho ut talki ng to a law yer f irst and w ithout
having a law y er present w ith me.
WITNESSES
(If available)
3.
SIGNA TURE OF INTERV IEWEE
NA ME
b.
ORGA NIZA TION OR A DDRESS A ND PHONE
4.
the w aiver cer tificate m ust be com pleted as soon as po ssible. Ev ery effort
If 1 or 2 applie s, the fact that the suspect/acc used w as advised
accordin gly sho uld be noted i n the c omment section on the w aiver
certificate a nd initia led by th e suspect /accused.
should be made t o compl ete the w aiver certif icate b efore a ny ques tioning
(Type or Print)
1 a.
IF WA IV ER CERTIFICA TE CA NNOT BE COMPLETED IMMEDIA TELY: In all cases
SIGNA TURE OF INV ESTIGA TOR
begins. If the w aive r certific ate cannot be comple ted at onc e, as in t he case of
WHEN SUSPECT/A CCUSED DISPLA YS INDECISION ON EX ERCISING HIS OR
street i nterrog ation, complet ion may be tem poraril y postp oned. N otes sh ould be
HER RIGHTS DURING THE INTERROGA TION PROCESS: If during the
kept on the c ircumstances.
interrogation , the s uspect display s indec ision a bout re questin g couns el (for
example, " Ma ybe I should get a law ye r." ), furthe r questionin g must cease
PRIOR INCRIMINA TING STA TEMENTS:
2 a.
NA ME
(Type or Print)
5.
TYPED NA ME OF INV ESTIGA TOR
immediately. A t that point, y ou may q uestion the susp ect/accu sed only
1 . If the supse ct/accused has made spontane ous incriminat ing statements
concerning w hether h e or she desires t o w aive c ounsel. T he questi oning may
before bein g prope rly adv ised of his/he r right s he/sh e shoul d be to ld that
not be utilized to disc ourage a suspect /accused from ex ercising his/her rights.
such stateme nts do n ot oblig ate him/ her to a nsw er fu rther qu estions.
(For example, do not m ake such comments as " If yo u didn' t do anythi ng w rong,
you sho uldn' t need an attorn ey." )
b.
ORGA NIZA TION OR A DDRESS A ND PHONE
6.
ORGA NIZA TION OF INV ESTIGA TOR
COMMENTS (Conti nued)
Section C. Non-waiver
1.
I do not w ant t o give up my r ights
2.
SIGNA TURE OF INTERV IEWEE
I w ant a law yer
I do not w an t to b e ques tioned or sa y anyt hing
A TTA CH THIS WA IV ER CERTIFICA TE TO A NY SWORN STA TEMENT (DA FORM 2 8 2 3 ) SUBSEQUENTLY EX ECUTED BY THE SUSPECT/A CCUSED
DA FORM 3881 , NOV 89
EDITION OF NOV 84 IS OBSOLETE
USAPA 2.01
REVERSE OF DA FORM 3881
USAPA V2.01
1. Enter the location where the rights advisement is taking place
2. The date and time gets filled in when the suspect signs the form
3. Name is self explanatory
Bldg #515, room #117, Ft Wherever, MT 12345
John William D.
123-45-6789
E-5 / AD
B Co. 1st/25th Inf
Schofield Barracks, HI 96858
(808) 655-1234
4. SSN and Grade is self explanatory
5. Enter the unit address of military or the home address of civilians
1. Enter the Agency which you represent
2. Enter the offense
3. Read each item word for word from the back of the form and
have the suspect initial when they understand each item.
Military Police
Assault (Art #128, UCMJ)
JWD
JWD
JWD
JWD
Q. Have you been advised of your legal rights and requested a lawyer within the past 30 days? A.
4. Ask this specific question and annotate their response
and have them initial. If the answer is YES, stop
questioning and contact your supervisor.
While explaining the suspects rights, read word for word this
passage which is found on the back of the form. This will help
explain their rights and standardize your interaction with all
suspects you encounter. All of this is on the form!
Continued…..
Continued…
Continue with the filling the form
1. If the suspect is willing to make a statement, they sign block #3
2. You sign block #4 regardless if they waive or invoke and print
or type your name in block #5
3. Your unit in block #6.
Watchin, Ima
John W. Dean
HHC 25th Inf, Schofield Barracks, HI 96857
(808) 655-1234
Snuffy, Joe
Snuffy, Joe
123rd MP Detachment, Ft Wherever, MT 96858
(808) 438-7114
4. Fill in the witnesses of the rights advisement (if available)
in blocks 1a – 2b.
1. The suspect has the option of checking one, both or neither of
these blocks and initialing

John W. Dean

Refused to sign
2. If the suspect chooses not to make a statement, they sign here.
Sometimes suspects are uncooperative and they do not want to
sign, if this happens write “Refused to sign” in this block. This
is when it good to have a witness.
How We Got Our Miranda Rights
On March 13, 1963, $8.00 in cash was stolen from a Phoenix, Arizona
bank worker. Police suspected and arrested Ernesto Miranda for
committing the theft. During two-hours of questioning, Mr. Miranda,
who was never offered a lawyer, confessed not only to the $8.00 theft,
but also to kidnapping and raping an 18-year-old woman 11 days earlier.
Based largely on his confession, Miranda was convicted and sentenced to
twenty years in jail. Miranda's attorneys appealed. First unsuccessfully to
the Arizona Supreme Court, and next to the U.S. Supreme Court.
On June 13, 1966, the U.S. Supreme Court, in deciding the case of
MIRANDA v. ARIZONA, 384 U.S. 436 (1966), reversed the Arizona
Court's decision, granted Miranda a new trial at which his confession
could not be admitted as evidence, and established the "Miranda" rights
of persons accused of crimes.
Ernesto Miranda was given a second trial at which his confession was not
presented. Based on the evidence, Miranda was again convicted of
kidnapping and rape. He was paroled from prison in 1972 having served
11 years. In 1976, Ernesto Miranda, age 34, was stabbed to death in a
fight. Police arrested a suspect who, after choosing to exercise his
Miranda rights of silence, was released
Mapp v. Ohio (1961): Looking for someone else, Cleveland, Ohio Police
entered Dollie Mapp's home. Police did not find their suspect, but arrested
Ms. Mapp for possessing obscene literature. Without a warrant to search
for the literature, Ms. Mapp's conviction was thrown out.
Escobedo v. Illinois (1964): After confessing to a murder during
questioning, Danny Escobedo changed his mind and informed police that
he wanted to talk to a lawyer. When police documents were produced
showing that officers had been trained to ignore the rights of suspects
during questioning, the Supreme Court ruled that Escobedo's confession
could not be used as evidence.
Fifth Amendment to the United States Constitution guarantees that people
cannot be forced to testify against themselves in a criminal case. It also
provides that a person cannot be placed in jeopardy twice for the same
offense. Amendment 5 also guarantees that (1) a person cannot be
deprived of life, liberty, or property without due process of law; (2) a
person cannot be held to answer for a "capital, or otherwise infamous
crime" unless he or she has been indicted by a grand jury, except that
military personnel are subject to court-martial; (3) property cannot be
taken from a person without just compensation. Amendment 5 is a part of
the Bill of Rights that was ratified on Dec. 15, 1791.