Suspect Rights
As a suspect or accused in the military, you have certain rights which are triggered by virtue of the military investigation. We refer to the rights that are triggered when questioned by law enforcement or your command broadly as suspect rights.
Article 31 Rights
You may have heard of Miranda Rights. This is where you are advised that you have the right to remain silent; anything you say can be used against you in court; and you have the right to speak with an attorney. In the military, your Miranda Rights are more extensive. Whereby Miranda is triggered when you are in police custody, your Article 31(b) Rights are triggered merely by your being questioned as a suspect, or as an accused servicemember. In laymen’s terms, Article 31(b) provides:
(a) You cannot be compelled to incriminate yourself, or answer any questions which may tend to incriminate you
(b) No one can interrogate you, question you, or request any statement if you are accused of a crime, or suspected of a crime, without first being informed about the nature of the accusation, and advising you that you don’t have to make a statement, and that any statement you make can be used against you.
(c) You cannot be compelled to make a statement at a court-martial, administrative hearing, or any other tribunal.
(d) The government cannot use statements as evidence given in violation of Article 31.
Our first piece of advice is to remain silent and do not authorize any searches. You always have the right to remain silent when questioned. As mentioned above, your Article 31 rights are triggered by virtue of your command or law enforcement asking you any questions related to a suspected offense. Once questioning starts, you should make the statement that you do not want to be questioned, and want to speak with an attorney. At this point, questioning must stop until you have had the opportunity to speak with an attorney. Don’t believe because your command questions you, that they can order you to make a statement. They cannot. Moreover, if you are asked for permission to search anything that you own (telephone, car, person, etc), do not give anyone approval to search anything. Once again, your command cannot order you to provide any evidence whatsoever.
We don’t advise you to speak to anyone before you speak with an attorney. If you, however, decide to make a statement, make sure everything you say is truthful. There is a trend among military prosecutors to add additional charges for making a false official statement. This is considered a low hanging fruit because of ease at which it is proven. Strikingly, even when you tell the truth, the government usually gives the most weight to the statements made by the person/people that is accusing you. As a result, making a statement without the advice of counsel is discouraged. Even if you begin making a statement, or authorized a search, you can, at any time, revoke your authorization by asking to speak with a lawyer.
Ask to speak with an attorney. Similar to your right to remain silent, you cannot be ordered not to speak with an attorney. Once you have made the decision not to make a statement, immediately contact an attorney to request assistance. DO NOT wait for your command to find an attorney for you. You can contact our firm HERE or, at the least, seek out the assistance of a trial defense attorney (TDS) or legal assistance attorney. DO NOT speak with your unit’s lawyer, they cannot speak to you about what you are suspected of committing. If the alleged offenses end up at a judicial, non-judicial, or administrative proceeding, your unit’s lawyer will be the one prosecuting you. You do not have to wait for charges to be brought against you to speak to an attorney.
If you are suspected of an offense we are here to help. Contact us immediately to set up your FREE CONSULTATION and let us walk you through your case.
Frequently Asked Questions
Can my command or law enforcement order me to make a statement?
No. You cannot be compelled to make any statement against you by anyone. If you feel as though you are suspected of a crime, do not make a statement to any member of your command, even if you think you are innocent.
Can my command search my car, room, or telephone?
Yes and no. The command cannot search your person, or anything that you own, unless they have probable cause to do so, OR if you give them permission. Our advice is to not give them permission. This makes them have to prove that they have probably cause to search you or your belongings.
I started talking to my command or law enforcement, and now I don’t want to talk anymore. What can I do?
The right not to make a statement continues even when you start talking. Immediately inform your command or law enforcement that you do not want to continue to make a statement, and that you want to speak with an attorney. Although what you said prior to electing this right can be used against you, they cannot question you any further. The same applies to revoking your consent for a search.
When I spoke to law enforcement, they mentioned some things that I know are not true. What can I do?
Although you are expected to provide a truthful statement to law enforcement (or risk being charged with making a false official statement), law enforcement are not held to the same rules. Law enforcement is permitted to bend the facts, and outright lie when questioning you. While it may not seem fair, this is why we tell you not to make any statements until you have had the opportunity to speak with an attorney.