Article 31(b) Rights

Article 31 of Uniform Code of Military Justice (UCMJ) (10 U.S.C. § 831) protects service members against compulsory self-incrimination and requires that they be informed of the alleged offense before being questioned. The right to remain silent is one of the most foundational and fundamental rights in the criminal justice system. Accordingly, it is critical that service members under investigation or facing adverse action fully understand this right. Contact MJA today to learn more.

Constitutional Right Against Self-Incrimination

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.

Congress later passed into law Article 31, UCMJ, which provides similar, but slightly different, protections to service members. The legislative intent of Congress passing Article 31(b) was “to address the subtle and not so subtle pressures that apply to military life and might cause members of the armed forces to feel compelled to self-incriminate.” United States v. Pearson, 81 M.J. 592, 602 (N-M. Ct. Crim. App.) (C.A.A.F. 2021) (quoting United States v. Gilbreath, 74 M.J. 11, 16 (C.A.A.F. 2014).

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:

1. Of the nature of the accusation;
2. That they have the right to remain silent; and
3. 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 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.

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.  

Military courts have explained that not all questioning of a service member by his military superior need be preceded by Article 31 warnings. Rather, a “servicemember is entitled to this rights advice only if he is a suspect at the time of the questioning and the questioning itself is part of an official law-enforcement investigation or disciplinary inquiry.” United States v. Good, 32 M.J. 105, 108 (C.M.A. 1991). However, “[w]hen the questioning is done by a military supervisor in the suspect’s chain of command, the Government must additionally rebut a strong presumption that such questioning was done for disciplinary purposes.”

Generally speaking, this means that neither your commanding officer nor anyone else in your chain of command can force you to answer their questions if they suspect you of criminal behavior; you have the absolute right to remain silent.

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. Article 31(d), UCMJ, provides: “No statement obtained from any person in violation of this article . . . may be received in evidence against him in a trial by 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. In fact, making a false statement to investigators can result in additional charges like a violation of Article 107, false official statement.

Requirement for Corroboration of a Confession or Admission

In some cases, the government may attempt to offer into evidence an accused’s admission or confession of evidence of guilt. In order to be admissible, such a statement must not only have been obtained in accordance with Article 31(b), UCMJ, but must be corroborated by independent evidence.

Military Rule of Evidence (M.R.E.) 304 prohibits a court-martial from considering an accused’s admission or confession as evidence of guilt unless “independent evidence, either direct or circumstantial, has been admitted into evidence that would tend to establish the trustworthiness of the admission or confession.” M.R.E. 304(c) states, in pertinent part, as follows:

1. An admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been admitted into evidence that would tend to establish the trustworthiness of the admission or confession.
2. Other uncorroborated confessions or admissions of the accused that would themselves require corroboration may not be used to supply this independent evidence. If the independent evidence raises an inference of the truth of the admission or confession, then it may be considered as evidence against the accused. Not every element or fact contained in the confession or admission must be independently proven for the confession or admission to be admitted into evidence in its entirety.

The independent evidence necessary to establish corroboration need not be sufficient of itself to establish beyond a reasonable doubt the truth of facts stated in the admission or confession, but only need to raise an inference of the truth of the admission or confession. At trial, the military judge must determine when adequate evidence of corroboration has been received.

Contact MJA Today

Service members suspected of a crime have the absolute right to remain silent and to speak with a lawyer. It is essential to note that exercising these rights can never be used against you later in a trial. 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. Contact us today by email or call us at (843) 473-3665 for a free consultation.