The right to remain silent is one of the most important rights to a person suspected of criminal misconduct. Provided by the Fifth Amendment to the United States Constitution and Article 31, Uniform Code of Military Justice (UCMJ), the right to remain silent allows a service member to refuse to answer any question that might tend to incriminate them.
MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ. If you are facing allegations of misconduct, MJA can help you determine whether it is in your best interest to make a statement or remain silent. Contact one of our military defense lawyers today for a free consultation.
Fifth Amendment Right
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.
A person is in “custody” for Miranda purposes if they are taken into custody, could reasonably believe that they are in custody or otherwise deprived of their freedom of action in any significant way. Courts have developed factors to consider in determining whether a suspect is in custody. These include, for example, whether the person is under formal arrest and whether they voluntarily accepted an invitation to talk.
The Supreme Court has carved out exceptions for some types of questioning that do not require a Miranda warning. One such example is that for routine booking questions, or those that are “reasonably related to the police’s administrative concerns” and used “to secure the biographical data necessary to complete booking or pretrial services.” The policy may not, however, ask questions during booking that are designed to elicit an incriminatory admission.
Article 31(b), UCMJ Right
Article 31of the UCMJ provides similar, but slightly different, protections to service members. 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.
Article 31(b), UCMJ, warnings are required when (1) a person subject to the UCMJ, (2) interrogates or requests any statement, (3) from an accused or person suspected of an offense, and (4) the statements regard the offense of which the person questioned is accused or suspected.
Persons “Subject to the Code”
It’s important to note that the requirements of Article 31, UCMJ, only apply to persons who are “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.
Involuntary Statements are Not Admissible
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.
Remember, investigators are not your friend. Investigators will play nice when speaking with a suspect but are only trying to elicit information they can later use against you. Generally, investigators are not seeking the truth but rather trying to get evidence to corroborate a preconceived narrative about what they believe happened. If a service member does speak to law enforcement—which is almost never advisable—do not lie because that will only make the situation worse.
Comparison Between Fifth Amendment and UCMJ
The protections for servicemembers 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 be 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.
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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