The Fifth Amendment to the United States Constitution protects civilians against compulsory self-incrimination. In the seminal case of Miranda v. Arizona (1966), the United States Supreme Court ruled that when a person is interrogated while in police custody, they must be read their Miranda rights. These protections include not only the right to remain silent, but also the right to have a lawyer present during questioning and the right to a court-appointed attorney, if you can’t afford one.
Article 31(b) of the Uniform Code of Military Justice (UCMJ) provides similar, but slightly different, protections to service members. It’s critical that service members under investigation or facing adverse action fully understand their rights.
Right Against Self-Incrimination under Article 31(b), UCMJ
Article 31(b) states that “no person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.”
In short, this means that a service member accused or suspected of an offense may not be interrogated or asked to provide an incriminating statement without first being informed:
- Of the nature of the accusation;
- That they have the right to remain silent; and
- That any statement made may be used as evidence against them in a trial by court-martial.
The protections for service members under Article 31 are different from Miranda rights in a few important ways. First, service members must be told what crime they are accused of under Article 31(b); with Miranda, you are not. Additionally, service members must told of their Article 31(b) rights any time they are being questioned, not just when they are in custody, as with civilians under Miranda. Finally, service members are NOT required to be told that they may have counsel present before or during the investigation. This is what we are here for at Military Justice Attorneys.
Article 31, UCMJ, Applies to Anyone “Subject to the Code”
It’s important to note that the requirements of Article 31, UCMJ, only apply to those “subject to the code” (referring to the Uniform Code of Military Justice). ” This includes active duty service members as well as any “knowing agent of any such person or of a military unit.”
For example, in a case out of Camp Lejeune, North Carolina, military prosecutors were able to have a Wounded Warrior Care Coordinator, who was a civilian and not “subject to the code”, testify against the accused. Specifically, the Care Coordinator was allowed to testify to admissions made by the accused about the night in question even though the Care Coordinator suspected the accused of wrongdoing and failed to provide Article 31(b) warnings.
In contrast, the accused’s Staff Non-commissioned Officer, who was “subject to the code,” was NOT allowed to testify after failing to advise the accused of her Article 31(b) rights prior to questioning.
Admissibility of Statements Obtained in Violation of Article 31, UCMJ
A statement obtained from an accused or suspect in violation of Article 31 is generally considered involuntary and therefore inadmissible at court-martial. While statements involuntarily obtained cannot be used against an accused for the ultimate fact at issue — guilt or innocence — military prosecutors may be able to use such statements at trial for other purposes, such as lack of mistake or consciousness of guilt.
Service members being questioned may feel pressured to answer a superior or a higher ranking official. If this happens, don’t say or write down anything. Clearly state that you wish to have an attorney present, and that you wish to exercise your Article 31(b) rights.
Remember, investigators are not your friend. They are there to draw information from you and use it against you in any way if you are a suspect. Of course, do not lie if you do speak to them because that will only make the situation worse.
Contact MJA Today
If you are under investigation or facing court-martial, it is of the utmost importance that you contact an experienced attorney. The most important rule to remember is to never talk to anyone without an attorney present. Military Justice Attorneys stands ready to fight for you. Call us today at (843) 773-5501 for a free consultation.
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