Article 31 Rights

Question: What's the difference between the Miranda Warning and your Article 31 rights under the UCMJ?



Gary:
So a couple of main differences. Number one, Miranda only applies when someone is actually in custody. There is a lot of case law out there on what constitutes custody when talking about Miranda. The controlling law for most of our client’s is from military and the federal courts, some state courts as well. Speaking very generally, the caselaw states that custody is the belief of the person that they are not free to leave the site of the questioning. Article 31 is different, is always applies, period— it doesn't matter whether or not someone is in custody or not.

The triggers for Article 31 are much more broad and there's more protection. As soon as someone that is subject to the UCMJ suspects you of committing an offense and asks you a question- you are entitled to have your rights explained to you. Once difference is that Miranda requires that a person be informed that you have the right to an attorney and to consult with an attorney before you can be questioned. Article 31 does not have the requirement that a service member be advised of their right to an attorney.

Question:
What is the verbiage is for UCMJ Article 31 that would be said to a service member?



Gary:
Article 31 Bravo. They will just about read it straight out of the book. Article 31 Bravo is what we typically think about when we tell a service member that they have rights under Article 31 of UCMJ. And it specifically says that, "No person subject to this chapter may interrogate, or request a statement from an accused, or a person suspected of an offense without first informing him of the nature of accusation, advising him that he does not have to make any statement regarding the offense of which he is accused or suspected of, and that any statement made by him may be used as evidence against him in a trial by court martial."

So you've got three main rights. The right that he doesn't have to make a statement. The right that he's entitled to know what he's being investigated of or accused of. And that any statement that he does make can and will be used against him in a trial or an administrative proceeding.

What triggers Article 31 is that the person being questioned is a service member, and that the person asking the questions is subject to the UCMJ, or that person is a civilian law enforcement officer employed by the Department of Defense. That's the one caveat to that. Generally speaking though, it is aimed at preventing superior officers or superior enlisted soldiers from asking a question of a subordinate, and that subordinate answering them feeling like they are obligated to answer because of their military service. Meaning, if you have a Drill Sergeant that is asking questions of a trainee, that trainee from day one is instilled that if Drill Sergeant asks you a question, you answer them. That is why there are the extra protections of Article 31 that don't exist under Miranda.

Question:
Can a service member ask for an attorney while he or she is being read UCMJ Article 31?

Gary:
A soldier can always ask for an attorney. And if the soldier is ultimately taken into custody, that would trigger Miranda So Miranda warnings would need to be issued and then they the service member would be instructed that they have the right to an attorney, and that if they could not afford one, one would be afforded to them free of charge. So the standard TV Miranda warnings would be issued. But a service member always has the right to refuse to answer questions, and to speak with an attorney before answering those questions. Otherwise, any statement that he or she makes is not usable against them.

Question:
What is the best route to take when dealing with the situation for UCMJ Article 31?

Gary:
My advice is: if you find yourself in a situation where someone is trying to ask you questions about anything, frankly, and they are a superior officer, or they are an investigating officer, or they are military law enforcement, just simply politely say, "Hey, I'm more than willing to cooperate with you, but I really want to talk to an attorney first so that I can ensure that my rights are being protected."

Let me be the bad guy. If I need to ultimately go back and say, "Hey, we're not going to answer any questions," I'll do that. You don't need to do that. That makes you seem standoffish. And we know just what the human instinct of someone that appears to be standoffish is: we immediately think, "Oh well you have got something to hide." That may or may not be the case. But it comes off much better if the attorney is the one to tell law enforcement that we're not going to have that conversation, or we're not going to answer any questions.

There is a time and a place for that, but I advise clients or potential clients to just be polite and say that they are not going to answer any questions without first speaking to an attorney. And that usually ends the inquiry.

Question:
If a service member says that they don't want to answer any questions without an attorney, what will happen?

Gary:
Well, look: most investigating officers, most superior officers, most superior noncommissioned officers understand exactly what that means, and will ensure that their service member's rights are being protected. They will get them to a defense attorney, or allow them to call one if they wish to contact a civilian defense attorney. And if they don't, then that is something that will prevent those statements, any statements, that are made from being used.

Question:
Can a service member waive UCMJ Article 31 rights?

Gary:
You can, just like Miranda. You're usually instructed about Article 31 rights in writing, and they are waivable. So as long as you understand and have been advised of your Article 31 rights, a service member can waive them.

Unfortunately, many service members do waive them, believing that everybody is out to be on their side. But I know from experience that sadly when caught in a situation like this and you are answering questions after having been advised of your rights, generally they're not out to protect you. Generally they're not out to exonerate you. They are pretty sure that they already have some information, which is why they believe that they had to read you your 31 rights because they suspect you of committing an offense. Don't confirm it for them without talking to an attorney first.

Question:
Does someone have to be read their UCMJ Article 31 rights for them to apply?

Gary:
They have to be instructed of their rights before they're asked any questions if they are again accused of or suspected of committing an offense. And that can be done either orally, or best practice is just do it in writing. One way or another, the person asking the questions—an investigating officer or military law enforcement or commander—must be able to prove that person knew and understood and properly waived their rights before answering any questions.

Question:
Are there any defenses for UCMJ Article 31?

Gary:
Sure. Asserting that Article 31 rights were not properly given. Asserting that a waiver was not properly given. That they were induced to waive their rights. Or they were improperly induced to make a statement. Or they were promised something in order to make a statement. Or that, frankly, just the rights just were not given.

For more information about this topic, please visit https://www.militarylaws.net.

By: The Law Office of Garrison A. Wood
1 (866) 603-9811
260 Peachtree St. NW, Suite 2200,
Atlanta, Georgia

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