EI INCUMBIT PROBATIO QUI DICIT.

How to Avoid the Minefields of Military Justice Issue 1 - Article 31b

Article 31b – Compulsory Self-incrimination Prohibited

For some odd reason, when young Servicemembers come under investigation, they feel they need to talk. I guess it’s not odd. It is the military. Integrity is everything. Integrity is drilled into the minds of all young Servicemembers during their basic training. I went to basic training in 1998. The drill sergeants beat core values into your skull. Integrity is one such core value. Close-knit groups consider integrity everything. It is not surprising that Servicemembers think anyone representing the uniform have their best interests at heart. When you are under investigation, the investigators are only interested in making their case and finding a way to see if you are guilty, though.

Integrity is not the only reason Servicemembers waive their rights and talk. Other Servicemembers think, “I have never been in trouble before, these agents have my best interests in mind,” so they talk. Unfortunately, that is not the case. There is always someone watching you. There is always someone waiting to catch you in a lie. I learned this early on in basic training.

I remember the first time we had a CID agent show up at training to talk to us about his job. He was of middling height, stocky, with long hair and a beard. This guy is what you pictured an agent to be. These days you can spot a CID agent a mile away. They all wear the same 5.11 pants and polos purchased at the local PX. At any rate, this particular agent informed us they are always watching. They talked about skulking around hotel lobbies, the local clubs and even at various establishments on post. I knew, at 17 years of age, there was always someone looking to see if you were doing wrong and could potentially jump out of the proverbial bushes to catch you in the act. If military agents are willing to disguise themselves attempting to catch Servicemembers in some perceived wrong, what kind of measures do you think they will exercise if you allow yourself to be questioned?

Prioritize Protecting Yourself During Investigations

The Servicemembers who ask, “Why would the military want to screw me,” have it backwards. They need to think, “How can I protect myself while under investigation?”

Article 31b spells out in basic terms the rights a Servicemember has when they come under investigation. Generally speaking, Servicemembers have a right to know what they are being investigated for and a right to remain silent*. The rights advisements imply you have the right to consult an attorney before questioning, too.

I have spoken to some Servicemembers who were read their rights, waived them and provided a statement, thinking it was the right thing to do. I have had other Servicemembers assert their rights, come back for questioning, and waive their rights because they were not patient enough to wait on advice from legal counsel. Still, others have reasoned it was a good idea because, “I’ve never been in trouble before and I am supposed to do the right thing, or I tried to do the right thing.” This is a basic concept.

Assert your Article 31b rights. Consult an attorney. Obtain advice before making a decision on submitting yourself for questioning.

This advice goes for criminal investigations and command directed investigations alike. Some might scratch their head at command directed investigations (CDIs). CDIs and AR 15-6 investigations can be conducted by officers who are not investigators by trade. Investigating Officers are required to provide Article 31b right advisements to the subject of the investigation if they intend to question them.

Lastly, even Non-Commissioned Officers are required to administer Article 31b rights if they start asking their Servicemember questions about an incident that could lead to an investigation. That’s right, NCOs are required to give rights advisements as well. Some NCOs get so spun up about something their young Servicemember is accused of doing, they jump into immediate action. NCOs are action orientated. It is not surprising that they would want to get to the bottom of an issue quickly. Just remember, if you are an NCO, give the rights advisement. Remember, if you are accused, and your NCO starts hammering away, you have rights. Don’t answer the NCOs questions and respectfully remind your NCO that they should be reading your Article 31b rights to you.

Why Do You Have to Assert Your Rights in the First Place?

Some may wonder why the recommendation is to assert your Article 31b rights and seek counsel. The main reason is you don’t know what you don’t know. When confronted with an unknown, it’s best to exercise all the assets you have available before acting. The trouble is, subjects of investigations think they know what is going on and are eager to put whatever the issue is to bed. They think that have to tell the truth right away. Servicemembers are conditioned to think that they are doing the right thing no matter what.

CID, OSI, NCIS and CGIS perpetuate this notion by making statements such as, “If you talk to us now, things will go easier on you later.” Some potential clients have told me that they were promised the problem would “go away” if they only told the truth. Military agents are trained to prey on your notions of values as well as your fears. I have literally reviewed cases where had the Servicemember merely declined to be questioned, the investigation would have turned up nothing useful to take action on. In most of those cases, the Servicemember talked and thus suffered the consequences of not asserting their basic Article 31b rights.

The less intuitive reason why you should assert your Article 31b rights deals directly with the investigator’s goals. Military investigative agents know their case closes quicker if they can obtain a confession from the subject of an investigation. I have reviewed, represented and won my fair share of false confession cases. These are cases where the individual was convinced that they are guilty due to the coercive nature of the questioning.

Not everyone has the “fuck you” mindset needed to stand up to an authority figure. Not everyone is willing to challenge assertions. In fact, in my experience, that mind set is in the minority of the population. Most individuals want to be compliant. Investigative agents know this and leverage this fact in their questioning.

Servicemembers are placed in an interrogation room, confronted with questionable choices and the potential consequences. Servicemembers have folded and said whatever they thought the agent wanted to hear. These cases require a very skilled and experienced attorney to unpack not only what happened in the interrogation room, but to critically analyze the whole case. The lesson I hope my readers take away from this is assert your Article 31b rights when confronted with questions by an investigator. Consult an attorney. Examine all of your options with an experienced attorney. Together, you will develop the right strategy for your case.

If you want myhelp in particular for your investigation, court-martial, or military criminal defense case, call my law firm at (888) 616-6177, or use an online contact form. I have personally represented Servicemembers from all branches of the United States Armed Forcesand in bases all across the globe. It is my priority to tell you your rights and then tenaciously protect them.


* “Art. 31.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.”