What to do when you’re read your rights

[CommunityEditor]

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.

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.

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.

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.

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.



Full article: http://www.airforcetimes.com/communi...r_umcj_070618/

[Measure Man]

Originally Posted by CommunityEditor

[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..[/i]

Full article: http://www.airforcetimes.com/communi...r_umcj_070618/

Good advice...I've sat on on a couple court martials. In both cases the defendants own statement was the strongest bit of evidence against them.

Sadly, I've seen time again, first sergeants use the fact that a troop "Lawyered Up" as proof in their own mind of some level of guilt in deciding on administrative or nonjudicial punishment. I think this is wrong...whenever I hear that phrase "He lawyered-up" (which is regularly), I remind the shirt that they can't consider that fact as any proof of wrongdoing...doesn't always work.

my husband did everything you said. When NCIS called the Navy Jag that he talked too. She told NCIS that yea she talked to him, but she does not represent him. She would not even come to NCIS or send someone over, so he would have some kind of defense counil present. When the rape charges were being sent to a summary court martial, again my husband went to legal only to have this Same JAG tell him to plead quilty and take his lumps since he only had 3 months left to retire. My husband has always maintained his innocents and I know the night in question. He is not guilty not even of the conviction of adultery that they convicted him of after the rape charges were dropped. The sailor that did rape this girl that night lied and told NCIS that he mislead the investigation from the very beginning. He was also sent to a summary court martial. THE same CO suspended all of his punishment reduction in rank and restrcition and his whole court martial was overturned. My husband was still convicted!! Even NCIS said they found no evidence of adultery or fraternization. They even called the female sailor back and questioned her about if she had the right individual. This girl was so drunk she stated she had over 25 beers that night. The male sailor that raped her that night had at 12 to 15 so he states. My husband was not even drunk and I and another CHief put him back on the ship before 11:00 that night. This female sailor and male sailor had bee to gether before in several ports and where seen going at it. She was even seen by another CHief;s wife at the ships
commissioning on the beach having sex with 3 other male sailors at a command picnic.
My husband was her chief, what better way to get herself out of trouble then to change her story from just having sex with my husband which never happened. My husband was investigated and the fraterniztion charges from the first investigation, as told to him by the Old CO. Where not founded and the investigation was dropped. Only when this girls name came up numerous time for having sex and other situations on board the ship. She then went to NCIS and changed her story from now just having as she put in her first statement consenual sex to now rape! No on ever question why she now changed her story. From that moment on my husband was guilty and never innocent by his command. Even during a phone conversation before charges were brought the Command master chief to my husband and I heard it clearly because the phone was on conference call . He told my husband that he must be guilty because NCIS would not normally take this long to invesitgate. It had only been 4 months.
I and my husband have been fighting with appeals and now have finally got Navy IG to investigate. I pray that the truth shall prevail !!! Because my husband and I suppport him 100% he is innocent and we both will fight this wrongful conviction till the day we both die.
My husband know exactly how the 3 duke lacrosse players feel. My husband to was convicted before he ever had chance and he to is innocent. During a investigation by the COmmander of the Pacific Fleet. They investigated how this all lead up to the court martial. I was told by the Pacific COmmand FOrce Judge advocate that quote " Black men get wrongully convicted of this all the time it was about time a white man was wrongully convicted. They know my husband is innocent and still the navy will not correct it!!!!

[The Universal Curmudgeon_guest]

Originally Posted by CommunityEditor

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.

Keep in mind also that a "statement" is exactly that. A "statement" is not "allowing yourself to be interrogated. A "statement" can well be in writing and composed with the aid of counsel.

In fact, a written statement is pretty hard for anyone to "twist".

On serious charges, I never had any difficulty in advising my soldiers that any "statement" that they gave should be a written one - and if the investigators wanted specific answers to specific questions then it was up to the investigators to provode those specific questions in writing.

[ringjamesa]

As somoene who has been read their rights on base, I had no problem giving a statement (written). I knew I didn't do what I was accused of (failure to identify and failure to obey a lawful order). What I found odd was the SFs didn't even tell us what we were charged with until we were handcuffed and in the back of the car. I had to ask repeatedly to find out what they claimed I did. My statement was the only one from the 4 of us that were arressted/detained whatever you want to call it. Other people that weren't even involved or present during most of the incident were allowed to make statements-those present for the duration were not unless they were accusing us of something. They were then allowed to change their statements the following day. My original statment-never changed-matched all of the new statments almost exactly-except one.... That one statement got me punished by the CC even with several statements saying that the accusations were false including one from a retired Army MSgt (I know the army abbreviates it differently sorry). So even a true statement when you know that you aren't guilty doesn't always save you if someone that out ranks you accuses you of something. Must be that whole presumed guilty until proven innocent thing.

[tdkarmy]

Originally Posted by Measure Man

Good advice...I've sat on on a couple court martials. In both cases the defendants own statement was the strongest bit of evidence against them.

Sadly, I've seen time again, first sergeants use the fact that a troop "Lawyered Up" as proof in their own mind of some level of guilt in deciding on administrative or nonjudicial punishment. I think this is wrong...whenever I hear that phrase "He lawyered-up" (which is regularly), I remind the shirt that they can't consider that fact as any proof of wrongdoing...doesn't always work.

I am a First Sergeant and find your remarks slanderous regarding this. A 1SG worth his salt understands fully that he does not adjudicate the non-judicial proceedings, does not recommend non-judicial proceedings, and only acts as an advisor to the Commander in non-judicial proceedings. In fact, a quality 1SG ensures that the legal rights of the "accused" are protected and that proper administrative procedures are adhered to at all times.

To lump all 1SGs ("Sadly, I've seen time again, first sergeants use...") into the category you have created is at least prejudicial and unfairly biased and at worst slanderous.

[Measure Man]

Originally Posted by tdkarmy

I am a First Sergeant and find your remarks slanderous regarding this. A 1SG worth his salt understands fully that he does not adjudicate the non-judicial proceedings, does not recommend non-judicial proceedings, and only acts as an advisor to the Commander in non-judicial proceedings. In fact, a quality 1SG ensures that the legal rights of the "accused" are protected and that proper administrative procedures are adhered to at all times.

To lump all 1SGs ("Sadly, I've seen time again, first sergeants use...") into the category you have created is at least prejudicial and unfairly biased and at worst slanderous.

Agreed that the 1Sg does not adjudicate nonjudicial proceedings. As an advisor to the commander, they certainly recommend for/against non-judicial proceedings...or varying levels of administrative actions, judicial proceedings etc. . Most commanders worth their salt give their first sergeant's recommendation quite a bit of weight.

I did not say, nor intend to imply, that ALL first sergeants are guilty of this. I've seen it enough times though...and the term "lawyered up" is common enough slang to know that it isn't all that isolated of an instance. I've heard the term many times while sitting with the first sergeant discussing what our recommendations might be to the commander. As in "well, there is no proof..." 1SG: "Well, he did lawyer up" with the implication clearly being that it was used as some indication of guilt. This practice is not exclusive to First Sergeants...but I'm always more surprised to hear it from a 1SG since with all their training and experience on legal process, they really should know better.

Originally Posted by tdkarmy

I am a First Sergeant and find your remarks slanderous regarding this. A 1SG worth his salt understands fully that he does not adjudicate the non-judicial proceedings, does not recommend non-judicial proceedings, and only acts as an advisor to the Commander in non-judicial proceedings. In fact, a quality 1SG ensures that the legal rights of the "accused" are protected and that proper administrative procedures are adhered to at all times.

To lump all 1SGs ("Sadly, I've seen time again, first sergeants use...") into the category you have created is at least prejudicial and unfairly biased and at worst slanderous.

As a minor technical note, if the remarks were defamatory they would be libellous and not slanderous (since they were written, not oral).

As a retired SNCO who handled numerous Air Force military justice actions, I can state that a First Sergeant's recommendation was highly influential in determining the commander's decision. Some first sergeants do indeed consider "lawyering up" as a suspicious sign, if not an indicator of guilt.

As a young Airman (prior to my time in JAG) I once did something stupid which resulted in my Article 31 rights being read to me by my own first sergeant. I declined an attorney (it was obvious I had done it, so I could see no reason to be dilatory). I firmly believe that my commander's lenient response to my actions was because I looked him in the eye and admitted to my wrongdoing.

That said, the traditional advice to "lawyer up" is usually the way to go. The exception is when you KNOW they have you anyway.

[Measure Man]

Originally Posted by Bill

The exception is when you KNOW they have you anyway.

...or maybe when you know absolutely nothing about the incident you are being suspected of...you were nowhere near the incident, and were completely uninvolved.

[ACV]

When I was in the Air Force I had a unique case or a minor accusation in which I did not request an attorney but looking back wish I had. I had gone PCS from one base to another for a classified assignment and when I arrived was immediately read my rights by the 1Sgt but not told the accusation. Knowing I was not guilty but believed it was just a misunderstanding I did talk with him.
This made matters worse as he told the Commander I was guilty with my agreement. (No written statements) The commander talked with me and didn't like my attitude believing me to have agreed to my guilt and tried to have me transfered w/o judicial action, (she had no case). That didn't work either and though the commander had no case against me in the end damage was done with me working for these her instead of another squadron.

If I had another person speaking on my behalf I am sure the misunderstanding could have been overcome helped her make a rational decision instead of an emotional one like trying to decide on attitudes.