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Military Justice 101 - Part 5
Right to Remain Silent (Article 31 Rights)
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• 1 - Introduction to Mil Law
• 2 - Counseling & Reprimands
• 3 - Admin Discharges
• 4 - Nonjudicial Punishment
• 6 - Pretrial Confinement
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F. Lee Bailey, a famous civilian criminal defense attorney, once said if he were accused of a crime he would rather be tried in a military court than in any other system of justice because of the protections afforded the military accused.

Many people don't know that as soon as they become a suspect their rights must be read to them before questioning. Article 31 of the UCMJ gave military people that right 16 years before the U.S. Supreme Court agreed in a case called "Miranda." The UCMJ provides that military suspects are also entitled to the services of a lawyer at no cost, regardless of rank or economic level. The U.S. Supreme Court did not guarantee that right to civilians until 12 years later, and only then if the accused could show he was needy.

Additionally, if an individual is undergoing Court Martial proceedings, military people can ask to be represented by a military attorney anywhere in the world and, provided they are reasonably available, they will defend the member.

Article 31 provides servicemembers with a broad protection against being compelled to incriminate themselves. The text of Article 31 provides as follows:

a. No person subject to this chapter may compel any person to incriminate himself or to answer any questions 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.

The concern of Congress in enacting Article 31 was the interplay of interrogations with the military relationship. Specifically, because of the effect of superior rank or official position, the mere asking of a question under certain circumstances could be construed as the equivalent of a command. Consequently, to ensure that the privilege against self-incrimination was not undermined, Article 31 requires that a suspect be advised of specific rights before questioning can proceed.

To which interrogators does Article 31 apply? Article 31(b) requires a "person subject to this chapter" (UCMJ) to warn an accused or suspect prior to requesting a statement or conducting an interrogation. The term "person subject to this chapter" has been the subject of some confusion. If this provision were applied literally, all persons in the military would be required to give warnings regardless of their position in the command structure or their involvement in a case. It is clear from the legislative history, however, that Congress never intended a literal application of this portion of the Code. Basically, all military personnel, when acting for the military, must operate within the framework of the UCMJ. Thus, when military personnel act as investigators or interrogators, they must warn a suspect under Article 31(b) prior to conducting an interview of the suspect.

The warning requirement similarly applies to informal counseling situations conducted in an official capacity. Statements obtained from an accused or suspect would not be admitted in a subsequent court-martial unless the "counselor" complied with Article 31. United States v. Seay, 1 M.J. 201 (C.M.A. 1975).

On the other hand, when military personnel are acting in a purely private capacity, no warning is required. For example, where Seaman Spano questions Seaman Yuckel about Spano's missing radio, no warning is required, assuming Spano's primary purpose is to regain his property. Yuckel's admission that he stole the radio will be admissible at trial, provided Spano did not force or coerce the statement.

When and who must warn, particularly in unofficial interrogations, has led to considerable confusion in the judicial system. The Court of Military Appeals clarified this area in United States v. Duga, 10 M.J. 206 (C.M.A. 1981). In Duga, the court held that the Article 31(b) warnings are required if:

a. The questioner was acting in an official instead of a private capacity; and

b. the person being questioned perceived that the inquiry involved more than a casual conversation.

Unless both of the Duga requirements are met, Article 31(b) warnings will not be required for any statement made to be admissible. Thus, where an undercover informant obtains incriminating statements from a narcotics dealer, the statements usually will be admissible regardless of the absence of warnings. Though the informant is acting in an official capacity, anything said by the suspect regarding the drug transaction is obviously a casual conversation rather than perceived as a response to official interrogation.

Normally a superior in the immediate chain of command of the suspect subordinate will be presumed to be acting in a command disciplinary function and, thus, be "official" for purposes of Article 31(b) warnings. In United States v. Loukas, 29 M.J. 385 (C.M.A. 1990), however, the Court of Military Appeals wrestled with the issue of whether questions asked for operational, rather than disciplinary, purposes require warnings. Loukas was an aircraft crewman who was having hallucinations in-flight when he was asked by his crew chief whether he had taken any drugs. Loukas replied he had taken cocaine the night before. No Article 31(b) warnings were given. The Court held that the operational nature of the question does not equate to official capacity as required for warnings; rather, the interrogation need in some way be connected with a criminal justice or disciplinary purpose. It is unclear at this point whether Loukas is fact-specific or whether the criminal justice / disciplinary purpose is now a prerequisite to a finding of official capacity or the existence of an interrogation. In United States v. Good, 32 M.J. 105 (C.M.A. 1991), the Court provided a legal analysis to be used in determining whether rights warnings are required. The Court built on the Loukas officiality test by stating: "[w]hen the questioning is done by a military supervisor in the suspect's chain of command, the government must rebut a strong presumption that the questioning was done for disciplinary purposes."

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Information derived from Handbook of Military Justice & Civil Law, Courtesy of the United States Navy

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