Serving Clovis, Portales and the Surrounding Communities

What are Article 31 rights?

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Area Defense Counsel

“You have the right to remain silent. Anything you say can and will be used against you in a court of law.”

How many of you have heard those words before? Pretty much anyone who has seen any law enforcement-related movie has watched officials advise suspects of their rights. This often-stated phrase stems from the Fifth Amendment of the Constitution, which requires law enforcement to give these warnings when questioning a suspect in custody.

So do you, as service members, have Fifth Amendment rights? Absolutely! In fact, your right against self-incrimination is even stronger in the military. The reason: Article 31 of the Uniform Code of Military Justice.

Unlike the Fifth Amendment, Article 31 does not require that you be in custody in order for the questioner to have to read you your rights. Thus, as long as the questioner suspects that you have committed an offense, they must warn you, regardless of where the questioning occurs.

If you find yourself in front of Security Forces, the Office of Special Investigations, or a unit supervisor and they want to talk to you about misconduct you may have engaged in, they must give you a rights advisement. In other words, you cannot be forced to provide a statement, verbal or written, that may incriminate yourself.

So what exactly does Article 31 require? Well, law enforcement must tell a suspect three things:

• What criminal act they are suspected or accused of doing

• That the member has the right to remain silent

• That any statements they make, verbal or written, could be used against them

If members are being advised of rights, it is important to understand that the investigators are not friend. They are there to convict or lead find evidence that will help convict. They have been trained on how to appear to be a friend and on other psychological techniques. Frequently, clients will tell us that they simply told the investigator what they wanted to hear in order to leave. This puts you in danger of making a false official statement.

If airmen decide to talk to investigators, it is important to understand that the law does not give the right to lie. If members do make a statement that is false, it is possible they will be prosecuted for making a false official statement or obstruction of justice. Take extra consideration before agreeing to answer questions after being advised of rights.

Now what about the situation where you are being questioned and nobody has given you a rights advisement? This advisement is only required in certain situations, and not all questioning fits the circumstances. Remember, only the accused really knows what happened. If being questioned enters territory that may self-incriminate, it is permissible to stop the questioning and invoke Article 31 rights, even without the advisement.

Military members are entitled to free military counsel. Take advantage of that right. The Area Defense Counsel office is here to assist with the process and can advise on legal rights. Anything said to the ADC is confidential and protected by attorney-client privilege; the right to remain silent is still protected.

If elected, invoke that right in the event you are questioned. The fact that it was chosen cannot be held against members in any later proceeding. Before giving a statement, call the ADC office to consult with defense counsel.

The ADC office is located at 110 Alison Avenue in Building 600, room 2020, just three doors down from Military Personnel Flight.

For more information, call the ADC office at 575-784-2915.

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