Your UCMJ Rights
You have rights under the UCMJ, and you should exercise them!
Article 31(b) Rights
Article 31 of the UCMJ says:
(a) No person subject to this chapter may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.
(b) 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.
(c) No person subject to this chapter may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade him.
(d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.
Article 31(b) is what prohibits investigators from asking you questions without first informing you generally what you are accused of, telling you of your right to remain silent, and informing you that anything you say can be used against you.
Article 31(d) is what prohibits an unlawfully obtained statement from being used against you in a court-martial. Notice that it does not prohibit unlawfully obtained statements from being used against you in administrative actions, such as an administrative separation board or nonjudicial punishment.
Right to remain silent
You have the absolute right to remain silent. Choosing to remain silent can never be held against you.
It’s common to think that your commanding officer may believe you are guilty simply because you chose to remain silent, leading someone to decide it’s best to tell their side of the story without a lawyer. Of the 20+ combined years Steph and Abby have been practicing military justice, we cannot think of a single time the choice to remain silent was to the detriment of the client.
During an investigation, you should remain silent until you are able to talk to an experienced military defense lawyer. If the right course of action is to make a statement, then it is necessary to be prepared to ensure you get the best result possible for your case.
You also have the right to remain silent in other proceedings, including nonjudicial punishment, disciplinary review boards, XOI’s, administrative discharge boards, or courts-martial.
There is a litany of reasons someone chooses to remain silent, completely unrelated to whether they are guilty. The choice is entirely personal and based on a multitude of factors. Steph and Abby take the time to work with our clients to help them come to the right decision for their particular case.
Nature of the accusations
A common question is whether investigators have to tell you exactly what you are accused of or whether they have to tell you any facts and details of what you’re accused of.
The short answer is: NO.
The investigator needs to give you a frame of reference for the investigation by telling you generally about the offenses. United States v. Quintana, 5 M.J. 484 (C.M.A. 1978). In one case, informing a suspect they were suspected of “sexual assault” in reference to one victim was sufficient to inform them they were also suspected of raping a separate victim 4 years prior. United States v. Rogers, 47 M.J. 135 (C.A.A.F. 1997).
You will not get details from agents during a rights advisement. Read more about what a subject interview looks like here.
Right to stop questioning and leave
When you are under investigation, you will be taken to NCIS, AFOSI, CID, or CGIS by someone in your chain of command. You must follow the orders of your superiors and go where they tell you to go, when they tell you to go there.
However, when you are sitting in the room with the agents and they read you your rights, you are free to invoke those rights and leave, unless they tell you that you are under arrest. If you do choose to make a statement and become uncomfortable or suspicious of the questioning, you have the right to tell them you are done being questioned and leave.
Right to an attorney
You have the right to an attorney. This applies when you have been read your Article 31(b) rights, when you have pending disciplinary action, when you are facing an administrative separation, and when you are charged in a court-martial. The exact scope of the rights differs between the different actions, so visit each page to learn more about the specific rights for each.
In the Army, Navy, Marine Corps, and Coast Guard, you have a limited right to counsel for everything short of administrative discharge boards and courts-martial. You will generally get an approximately 30-minute consultation with them, where they will discuss their limited scope of representation. They will not provide a full scope of representation the way a civilian military defense counsel can.
When you are being questioned, you must unequivocally invoke your right to an attorney. Saying “Maybe I should talk to a lawyer” is insufficient to invoke your rights and stop the interview. United States v. Davis, 36 M.J. 337 (C.M.A. 1993), aff’d, 512 U.S. 452 (1994). Say:
- “I want a lawyer.”
- “I am exercising my right to an attorney.”
- “I want to remain silent.”
- “I will not make a statement.”
Don’t discuss with the agents whether to invoke your rights. They will keep trying to question you. Invoke your rights and then talk to an experienced military defense lawyer to determine your next steps.
Right to refuse consent
You have the right to refuse consent. When investigators ask, “can we take a look at your phone?” the answer should be “no.” Even if you think you have evidence that is favorable to yourself, remember that you do not know what all the other evidence may be, and that the agents do not have your best interests in mind.
If you have already given consent, you can revoke it at any time. This is extremely important in cases involving forensic testing. For example, when you have consented to a urinalysis, you can withdraw that consent prior to testing, even when the urine is in the custody of the government. United States v. Dease, 71 M.J. 116 (C.A.A.F. 2012). If they test it anyway, the evidence will be inadmissible at a court-martial.
When KMD provides a notice of representation after we have been retained, we will also talk to our clients about revoking consent. If included in the notice, the revocation will clearly inform the government that the evidence cannot be tested absent a search authorization, which they may or may not have legal grounds to obtain. In some past cases KMD has handled, this tactic has worked to get all the charges dismissed in court-martial proceedings.
Contact Kral Military Defense, PC today at 619-376-6820.