Fleming IslAnd, Orange Park,FLorida
There is a popular conception that military members have few, if any rights. While some rights, such as the right to free speech, are partially curtailed while on active duty, military members do enjoy many of the rights that all Americans enjoy, and in some cases, their rights exceed those guaranteed to all citizens under the U.S. Constitution. Two examples of this are the right against self-incrimination and the right to counsel.
The Right to Remain Silent
Article 31, UCMJ, provides a robust right against self-incrimination. Indeed, this right to remain silent exceeds Miranda rights under the 5th Amendment because the right exists any time a member is questioned as a suspect, even if the questioning is not conducted by police and is not a “custodial interrogation”. Furthermore, Article 31 protects a member not only from self-incriminating questions but also from being forced to make a statement or produce evidence "that is not material to the issue or may tend to degrade him" or her. Article 31 requires that any person in the military who wants to question another military member who is suspected of an offense, the questioner must first inform the member of the nature of the accusation (the offense(s) of which he is suspected), of his right to remain silent, and that any statement he makes may be used against him. Article 31 contains an exclusionary rule which prohibits the introduction as evidence in a court-martial any statements obtained without complying with Article 31 or otherwise coerced or unlawfully induced. Note to service members, if you have been advised of your rights under Article 31, you should virtually always invoke your right to remain silent until you have had a chance to consult with an attorney. This right is there to protect you. Use it. Start with your free military defense counsel made available to you by your service. Once you have a better idea what kind of trouble you are in, consider whether you should also consult with outside counsel.
The Right to Counsel
The UCMJ, Article 27, and Rule for Court-Martial 506 provide military members accused of a crime with a right to counsel that is more comprehensive than the 6th Amendment right to counsel which all Americans enjoy. The primary difference is that at least one free military defense counsel is provided regardless of the accused’s ability to pay. There is no need for the military member to prove indigency to qualify for appointed counsel. Another difference is that military members may request a specific military defense counsel, even from another service, to defend them, and if that person is “reasonably available,” he or she will be provided. The accused also has the right to hire a civilian counsel at the accused’s expense. The accused has the right to be represented by counsel at the magistrate hearing when a determination is made regarding continued pretrial confinement, at the Article 32 investigation, and during all court-martial sessions. After trial, the accused has a right to free military counsel to assist with his appeal through the military appellate courts, and potentially to the U.S. Supreme Court.
Advice to those facing charges. Don't assume that just because a military lawyer is free, that they aren't valuable. Many military defense counsel are excellent advocates and do a fine job defending their clients. However, due to the relatively low rate of courts-martial in today's military, many defense counsel have very limited trial experience, and may have little or no experience with the specific kind of charges you are facing. Although your defense counsel likely outranks you, you must not be afraid to ask him or her what kind of experience they have and what kind of results they have obtained so you can make an informed decision about whom you want to represent you. If your counsel is offended by these questions, that is not a good sign.