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What to do when you’re read your rights

If you ever find yourself in a situation where you’ve been read your Uniform Code of Military Justice Article 31 rights — the equivalent of a civilian’s Miranda rights — here’s the first thing you need to do:

Shut your mouth and request a lawyer.

My law partner, Greg Rinckey, a former Trial Defense Service attorney for the Army Judge Advocate General Corps, has a saying: “Confession is only good for church.”

F. Lee Bailey, a famous civilian criminal defense attorney, once said that if he were accused of a crime, he would rather be tried in a military court than in any other system of justice because of the protections that are afforded accused service members.

Many people don't know that as soon as they become a suspect in a crime, their rights must be read to them before questioning. Article 31 of the UCMJ gave military personnel that right 16 years before the Supreme Court agreed in the landmark Miranda ruling.

The UCMJ provides that military suspects are also entitled to the services of a lawyer at no cost, regardless of rank or economic level. The Supreme Court did not guarantee that right to civilians until 12 years later — and then only if the accused could show he/she was needy.

Let’s explore service members’ rights under Article 31.

First, Article 31 rights prohibit compulsory self-incrimination. What this means is that you cannot be compelled to incriminate yourself or answer any question if that answer may tend to incriminate you.

Further, under Article 31, no person may interrogate or request a statement from people accused or suspected of an offense without informing them of the nature of the accusation, that they do not have to make a statement, and that any statement made by them may be used as evidence against them at court-martial.

Article 31 rights afford an accused or someone suspected of a crime greater protection than Miranda rights. For Miranda rights to be triggered, the accused or suspect must be taken into custody.

In contrast, there is no custody requirement under Article 31. This is an important distinction that many military defense attorneys can use to get a statement or evidence suppressed — thrown out — because the service member’s Article 31 rights were not read prior to questioning.

What this means is that at the moment the military police, criminal investigators or even a commander suspects a member of a crime, the member must be read his Article 31 rights before any questioning may begin.

Many commanders do not understand the rights afforded under Article 31 and begin to question troops regarding an offense under the UCMJ before reading them their Article 31 rights. This is a violation of the member’s rights and often leads to suppression of the statement and any evidence found through use of the statement.

This leads us to the next question: What should you do if you’re read your Article 31 rights?

First, if you’re being read your rights, understand that you are now accused or at least suspected of committing a crime under the UCMJ. This is serious — and thus the next actions you take will be critical as to whether charges are eventually preferred against you.

The best advice I can offer — and this applies whether you are guilty or not — is to invoke your rights and demand that you be allowed to speak to a defense lawyer.

Military police and criminal investigators may tell you that they’re there to help you, and that if you come clean it will be better for you in the long run. This is usually not the case; often, the best evidence a prosecutor can obtain will be a confession of the accused. A valid confession is hard to get thrown out of court.

There’s nothing wrong with invoking your right to remain silent and asking to speak to a lawyer. It does not make you appear guilty, and the fact that you invoked your rights can never be used against you.

Military law enforcement can lie to you during questioning (yes, I said lie to you). Court decisions have even upheld this practice by law enforcement. One maneuver they often use — which will be familiar to anyone who has ever watched “Law & Order” or other television legal dramas — is to take two suspects into custody, then separate them and play each off the other by telling Suspect One that Suspect Two has confessed and placed all the blame on Suspect One, so Suspect One should just come out and say what happened.

If you’re read your Article 31 rights, you should immediately tell the person reading you the rights that you do not have a statement to make at this time and that you demand to speak to a defense attorney.

If you are not in custody, you should immediately request permission from your commander to go directly to Trial Defense Service. Make no statements to your buddies or even your spouse, as they could be called as witnesses against you.

Once you discuss the facts and circumstance of your case with a defense attorney, he or she will assist you in deciding whether to make a statement to law enforcement or your commander.

If the decision is that you should make a statement, I strongly recommend that your attorney accompany you and remain with you so that your statement is not twisted by law enforcement.

I have seen cases where the client is not charged with the original accusation, only to be charged with making a false official statement.

Under no circumstance should you take a polygraph, even if you are 100 percent innocent, unless you discuss this with defense counsel and defense counsel is present with you during the actual polygraph. While polygraphs are not admissible at trial, they often will continue to drive an investigation and are used as an interrogation tool for law enforcement.

There’s nothing shady or underhanded about any of this; these are your rights, granted to you by law, and you are perfectly free to use them.

To recap, if you are read your Article 31 rights, invoke your right to remain silent and ask to speak to a defense attorney. Only after speaking to a defense attorney should a decision be made about whether a statement should be given.

Keep in mind that a statement — properly made, with defense counsel present — can, in some instances, assist law enforcement or your commander in deciding that charges are not, in fact, warranted against you.

Hopefully you’ll never find yourself having your Article 31 rights read to you, but at some point, someone in your command or one of your buddies may well be read their Article 31 rights — and knowing what to do in the first few moments are critical.

Mathew B. Tully, Esq. is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates (www.fedattorney.com), a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytiumes.com.

The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.

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What to do when you’re read your rights