Article 31(b) Rights: What Service Members Must Know

Civilian defendants learn about their right to remain silent from Miranda warnings. Military personnel have the same protection under Article 31(b) of the Uniform Code of Military Justice, but enforcement matters even more in a rank-driven environment. Saying the wrong thing at the wrong time doesn't just risk self-incrimination. It can derail a career, influence a command investigation, and become the backbone of a court-martial case.

If you're reading this, someone may have already questioned you. The question isn't whether you have rights. It's whether those rights were protected.

What Must Happen Before You're Questioned

Under Article 31(b), any military official must inform you of three facts before asking anything related to a potential offense:

• That you're suspected of a crime
• The general nature of that accusation
• That you have the right to remain silent and consult a lawyer

This applies whether the questioner is OSI, NCIS, CID, CGIS, your commander, or anyone else in uniform acting in an official capacity. The setting doesn't matter. The rank of the questioner doesn't matter. If you're a suspect, these warnings are mandatory.

Unlike civilian Miranda rights, Article 31(b) doesn't require you to be "in custody" before protections kick in. The moment suspicion exists, your rights exist. This distinction matters because military investigators often begin questioning in seemingly casual settings, before any formal accusation, hoping to gather statements without triggering the warning requirement.

Signs Your Article 31(b) Rights Were Violated

Not every conversation is a violation. But certain patterns indicate your rights may not have been protected:

You were questioned without being told you were a suspect. Investigators sometimes frame early conversations as "just gathering information" or "helping us understand what happened." If they suspected you and didn't say so, anything you said may be challengeable.

You were told about one offense but questioned about another. In United States v. Huelsman, 27 M.J. 511 (A.C.M.R. 1988), a service member was warned about larceny but questioned about drug distribution. The court excluded his statements on the drug charges because the area of suspicion wasn't properly disclosed. Article 31(b) requires specificity. Vague warnings don't count.

A civilian investigator questioned you without warnings. Civilian questioning can trigger Article 31(b), but only in certain circumstances. In United States v. Payne (C.A.A.F. 1997), the court explained that whether civilian and military efforts have "merged into an indivisible entity" is a fact-specific inquiry. Courts look at the scope and character of the cooperation, especially whether the civilian was acting as an instrument or agent of military disciplinary or law enforcement authorities. If that kind of agency exists and warnings weren't given, your statements may be challengeable.

You gave a second statement after an improper first one. In United States v. Brisbane, 63 M.J. 106 (C.A.A.F. 2006), the court explained that when an earlier confession was involuntary due to improper rights warnings, the admissibility of a later confession turns on the totality of the circumstances. The taint of an improper first interrogation can affect what comes after.

You felt pressured by rank to answer. The entire purpose of Article 31(b) is to counteract the coercive environment of military hierarchy. Courts have recognized that a subordinate facing questions from a superior operates under pressure that doesn't exist in civilian settings.

What Happens When Rights Are Violated

A rights violation doesn't automatically end your case, but it can gut the government's evidence.

Suppression of statements. Under Mil. R. Evid. 305, a statement obtained in violation of Article 31(b) is treated as involuntary and is generally inadmissible against the accused. If your confession is the centerpiece of the prosecution's case, suppression can be decisive.

Exclusion of derivative evidence. Sometimes what you said led investigators to other evidence. If the original statement was improper, the evidence it produced may also be challengeable under the "fruit of the poisonous tree" doctrine.

Corroboration problems. Even properly obtained confessions require independent corroboration under M.R.E. 304. The government can't convict on your words alone. If they relied heavily on an improperly obtained statement, they may not have enough left to meet this burden.

Weakened plea leverage. Prosecutors negotiate differently when their key evidence is at risk. A strong suppression motion changes the calculus of every conversation about your case.

How Joseph L. Jordan Fights Article 31(b) Violations

Attorney Joseph L. Jordan spent over a decade in uniform as an enlisted soldier, officer, and Army JAG prosecutor. He has been on both sides of Article 31(b) disputes. He has given the warnings, tested whether they were properly given, and challenged confessions that should never have been admitted.

His approach to rights violations includes:

Reconstructing the interrogation. Who was present? What was said before the recording started? Was the warning complete or rushed? Were you told about all suspected offenses or just some? These details determine whether your statements survive a suppression motion.

Identifying procedural failures. Investigators have protocols. When they skip steps, documentation often reveals it. Jordan knows what to look for because he has worked within these systems.

Filing suppression motions. If your rights were violated, the remedy is excluding the evidence. This requires demonstrating exactly how the violation occurred and why the law requires suppression.

Leveraging violations in negotiation. Not every case goes to trial. But a prosecutor facing a strong suppression argument has reason to reconsider charges, plea offers, and sentencing recommendations.

Frequently Asked Questions

I already talked. Is it too late? No. The question is whether your statements were properly obtained, not whether you made them. If your rights were violated, your attorney can challenge the use of those statements at trial or in negotiations.

What if I wasn't read my rights but I volunteered information anyway? Voluntary statements can still be used, but "voluntary" has a specific legal meaning. If you were questioned by someone who suspected you of an offense and didn't warn you, the statement may not be truly voluntary under the law.

Can civilian investigators questioning me trigger Article 31(b) rights? It depends on the relationship between the civilian and military authorities. If the civilian investigator was acting as an agent of military law enforcement or if the investigations merged into a single effort, Article 31(b) may apply. Courts look at the scope and character of the cooperation to determine whether warnings were required.

Can my commander question me without warnings? Your commander must provide Article 31(b) warnings if you're suspected of an offense and the questioning is part of a disciplinary inquiry. Courts apply a strong presumption that questioning by someone in your chain of command is disciplinary in nature.

What's the difference between Article 31(b) and Miranda? Article 31(b) protections are broader. Miranda requires custody before warnings are mandatory. Article 31(b) applies whenever you're a suspect, regardless of custody. Additionally, Miranda requires informing you of the right to counsel during questioning. Article 31(b) requires only that you be told you may remain silent and consult a lawyer, though military practice typically includes fuller advisement.

Does invoking my rights make me look guilty? No. Courts have consistently held that requesting counsel or remaining silent cannot be used as evidence of guilt. Invoking your rights is a lawful choice, not an admission.

What should I do right now if I'm under investigation? Stop talking to investigators, commanders, and fellow service members about the allegations. Contact a military defense attorney before your next conversation with anyone in an official capacity.

Contact a Court-Martial Defense Attorney

Before you speak to anyone else, speak to us. Call (888) 688-3186 to schedule a confidential consultation with Joseph L. Jordan, court-martial defense attorney.

If you've already been questioned, we need to review what happened. If you're facing more questioning, we need to prepare you. If your statements are being used against you, we need to evaluate whether they should be.

Your silence may be the most powerful move you make. But silence alone isn't a defense strategy. It's the first step toward one.