Rights of the Accused During Military Investigation: A Practical Guide

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During a military investigation, before any charges, a suspect has four main protections. Article 31(b) requires a warning before anyone subject to the UCMJ, acting in an official law-enforcement or disciplinary capacity, interrogates or requests a statement from a suspect, with or without custody. If the suspect invokes the right to remain silent, “questioning must cease immediately” (M.R.E. 305(c)(4)). A request for counsel stops questioning when it is made during custodial interrogation, or after charges are preferred, and counsel is then provided at no cost (M.R.E. 305(c)(2)-(4), (d)). And a search requires an authorization based on probable cause unless a recognized exception applies, such as voluntary consent, which the suspect may refuse.

The rights warning

Before questioning, the suspect must be told the nature of the accusation, that no statement is required, and that any statement may be used at court-martial (Article 31(b)). “Interrogation” means “any formal or informal questioning in which an incriminating response either is sought or is a reasonable consequence of such questioning” (M.R.E. 305(b)(2)). A statement obtained in violation of Article 31 is involuntary and inadmissible except as the rules allow (M.R.E. 305(c)(1)). How the warning compares with Miranda is explained in the Article 31 warning and how it differs from Miranda.

Silence

  • Invoking. “If a person chooses to exercise the privilege against self-incrimination, questioning must cease immediately” (M.R.E. 305(c)(4)).
  • Waiving. A waiver must be made “freely, knowingly, and intelligently”; no written waiver is required, but the suspect must affirmatively acknowledge understanding the rights, affirmatively decline counsel where it applies, and affirmatively consent to make a statement (M.R.E. 305(e)(1)).
  • What a statement can lead to. Anything said may be used as evidence. A false statement made in an official matter can itself be charged under Article 107, which covers false official statements.

Counsel

When a request stops questioning. If a suspect “subjected to custodial interrogation requests counsel,” statements and derivative evidence from interrogation after the request are inadmissible unless counsel was present (M.R.E. 305(c)(2)). After charges are preferred, the same applies to interrogation about the preferred charges by anyone acting in a law enforcement capacity if the accused requests counsel or already has counsel (M.R.E. 305(c)(3)). In either situation, “questioning must cease until counsel is present” (M.R.E. 305(c)(4)). “Custodial interrogation” means questioning while the suspect “is in custody, could reasonably believe himself or herself to be in custody, or is otherwise deprived of his or her freedom of action in any significant way” (M.R.E. 305(b)(3)).

Who provides counsel. When a person entitled to counsel under the rule requests it, a judge advocate or certified counsel “will be provided by the United States at no expense to the person and without regard to the person’s indigency”. The person may also retain civilian counsel, but has no right under this rule to military counsel of the person’s own selection unless service regulations provide one (M.R.E. 305(d)).

Reinitiating after a request. After a custodial request for counsel, a later waiver is invalid unless the government shows the suspect initiated the communication, or that the suspect’s freedom was not continuously restricted between the request and the waiver (M.R.E. 305(e)(3)(A)). After preferral, the government must show the accused initiated it (M.R.E. 305(e)(3)(B)).

Civilian police. When civilian officials interrogate a service member, the rights and the validity of any waiver are judged by the principles applied in civilian federal criminal trials (M.R.E. 305(f)(1)). Counsel rights once charges reach court-martial are described in the right to counsel in court-martial proceedings.

  • Searches require a search authorization based on probable cause or a recognized exception (M.R.E. 315, 316).
  • Inspections for a legitimate command purpose are not searches, but “An examination made for the primary purpose of obtaining evidence for use in a trial by court-martial or in other disciplinary proceedings is not an inspection”. When a purpose of the examination is to locate weapons or contraband and it follows a report of a specific offense, singles out particular people, or subjects some to substantially greater intrusion, the government must prove by clear and convincing evidence that it was a genuine inspection (M.R.E. 313(b)).
  • Consent must be voluntary, and the government must prove it by clear and convincing evidence; a suspect may decline (M.R.E. 314(e)).

These rules are covered in how search and seizure rules apply in the military.

Restraint before charges

A suspect may be restricted, arrested, or confined before trial only under R.C.M. 304 and 305, with notice and review requirements; a confinee who requests military counsel must be provided one before the 7-day review or within 72 hours, whichever comes first (R.C.M. 305(g)). See pretrial confinement and restraint options.

An invitation to “come talk” (hypothetical)

An agent asks a member who is not under arrest to “come talk” about a missing laptop. The agent must first give the Article 31(b) warning. If the member says, “I don’t want to talk,” questioning must stop immediately. If the member instead asks for a lawyer, M.R.E. 305(c)(2) bars use of later statements only if the questioning was custodial, so whether the member was “otherwise deprived of his or her freedom of action in any significant way” becomes the key fact. If the agent then asks to search the member’s phone, the member may refuse consent; the agent would need a search authorization or another exception.

Sources

This article is general information about military law, not legal advice for any individual case.

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