This morning we received a phone call with a question about Article 31, UCMJ rights. The more you know, the better you can make informed decisions. Generally, we take the view that it is almost never a good decision to make a statement without consulting with counsel. There are several reasons for that:
1) You don't know what evidence they have;
2) There is a chance that the government will not believe you no matter what you say. In other words, no matter what you say, they could charge you with false official statement;
3) If there is a way to mischaracterize your words, they will find it;
4) They don't always ask for written statements. If you make an oral statement, your statement is whatever they say it is.
The United States Constitution and Article 31 (b) of the UCMJ require rights advisements before interrogations or requests for statements. The Court of Appeals for the Armed Forces (C.A.A.F.) has repeatedly recognized that rights advisements have a particular significance in the military because the effect of “superior rank or official position upon one subject to military law, [is such that] the mere asking of a question under [certain] circumstances is the equivalent of a command.” United States v. Harvey, 37 M.J. 143 (C.M.A. 1993).
Under Article 31(b) “No person . . . 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 . . . . “
Rule 305(c) of the Military Rules of Evidence, further clarifies, “A person subject to the code who is required to give warnings under Article 31 may not interrogate or request any statement from an accused or a person suspected of an offense without first: (1) [i]nforming the accused or suspect of the nature of the accusation . . . .” The case law reiterates, “The accused must be made aware, however, of the general nature of the allegation. The warning must include the area of suspicion and sufficiently orient the accused toward the circumstances surrounding the event.” United States v. Huelsman, 27 M.J. 511, 513 (A.C.M.R. 1988) (citing United States v. Schultz, 19 U.S.C.M.A. 31, 41 C.M.R. 31 (C.M.A. 1970); United States v. Reynolds, 16 U.S.C.M.A. 403, 37 C.M.R. 23 (C.M.A. 1966)). See also United States v. Pipkin, 58 M.J. 358, 360 (C.A.A.F. 2003) (quoting United States v. Simpson, 54 M.J. 281, 284 (C.A.A.F. 2000)) (holding that the suspect has a right to know the general nature of the allegation).
Often, when the government violates your Article 31 rights, they will attempt to elicit a second statement with a cleansing warning. They want you to say the same thing again after being advised of your rights. Where an earlier statement was involuntary because the accused was not properly warned of his Article 31 (b) rights, the voluntariness of the second statement is determined by the totality of the circumstances. United States v. Brisbane, 63 M.J. 106, 114 (C.A.A.F. 2006). Further, Congress has enacted the exclusionary provision of Article 31 (d) as a strict enforcement mechanism to protect a service member’s Article 31 (b) rights. United States v. Swift, 53 M.J. 439, 448 (C.A.A.F. 2000).
In Huelsman, the court held the individual’s statements made in regards to possession and distribution of marijuana was inadmissible because even though he was advised of his rights in regards to the larceny charge, he was not informed that he was suspected of possession and distribution. United States v. Redd, 67 M.J. 581, 588 (A.C.C.A. 2008) (citing Huelsman, 27 M.J. at 513). If the nature of the charge is not explicit, confessions are voluntary if the individual has constructive notice of the charge. That is not the case here. United States v. Annis, 5 M.J. 351, 352-53 (C.M.A. 1978). In Reynolds the airman’s statements were involuntary because although he knew he was suspected of wrongful leave, he was not aware of the wrongful appropriation charge. United States v. Piazza, No. 200301263, 2005 CCA LEXIS 370, at *7 (N-M.C.C.A. Nov. 22, 2005) (citing United States v. Reynolds, 16 C.M.A. 403, 405 (C.M.A. 1966)).
The Article 31(b) warning requirements can apply to civilian investigators working with the military. Mil. R. Evid. 305(c) applies to civilians (1) “[w]hen the scope and character of the cooperative efforts demonstrate that the two investigations merged into an invisible entity” and (2) “when the civilian investigator acts in furtherance of any military investigation, or in any sense as an instrument of the military[.]” United States v. Payne, 47 M.J. 37, 42 (C.A.A.F. 1997) (citing United States v. Quillen, 27 M.J. 312, 314 (C.M.A. 1988).
Remember, you always have the following rights:
1. You have the right to remain silent. (BEWARE OF PRETEXT PHONE CALLS)
This is critical. Your command may exert extreme influence to coerce you into making a statement. Investigators will tell you anything to get you to talk. They will tell you that they are simply trying to close the book on the investigation. They will tell you it’s no big deal, they just need a statement. They will appeal to your emotions. They will tell you that you have to give a statement.
Sometimes a helpful script for invoking your rights might go as follows:
"Sir, I do want to cooperate, but under the circumstances I am invoking my 5th Amendment and Article 31 Rights to remain silent and to speak to a lawyer. I would like to speak to a lawyer at this time."
You can reiterate the above as needed to ensure that your right to remain silent is protected.
Also, if you are accused of sexual assault, be extremely wary of phone calls or conversations from individuals - especially alleged victims - who want to talk about the events in question. Pretext and recorded conversations are a favorite tool of law enforcement. Very rarely has a client regretted not saying anything.
2. You have the right to speak to an attorney, whether or not you committed a crime.
You should always consult an attorney before discussing with anyone. You can contact this firm for a free initial consultation at firstname.lastname@example.org or 1-800-355-1095 24 hours a day.
3. You have the right to have an attorney by your side when you talk to any investigator or anyone in your chain of command.
NCIS, CID, and OSI often type your statement for you. Your words get twisted. They frequently paraphrase and use incriminating language. They will often rush you through the process of signing your statement so that you do not have an opportunity to fully read the statement.