Basic Pre-Trial Investigative Rights in the Military
This legal guide is meant to be a short summary of some of your basic rights during the investigatory process (both interrogation and Art 32 investigation) and what options are available to you if you are being investigated by your command or a military law enforcement agency.
Can you be ordered to give a statement?Often times, usually as a result of basic training, service members feel as though they must comply with any and all orders given to them by individuals in a position of authority over them. However, Article 31, UCMJ, clearly states "No person subject to this chapter may compel any person to incriminate himself or to answer any question... which may tend to incriminate him." It goes on to state that no one may interrogate an accused without first informing them of the nature of the accusation against them and informing them that they do not have to make a statement." Additionally, the interrogator must also warn the suspect that anything the accused says may be used against him/her later. What this simply means is that you have the right to remain silent and that no one can order you to make a statement that might cause you to incriminate yourself. That said, nothing in Article 31 prevents your command from ordering you to physically report or be taken to a law enforcement (NCIS, CID, OIS, etc) office. However, once you arrive, the agent who wishes to interrogate you must read you your Art 31 rights as listed above prior to the interrogation. It is at that point that you may invoke your right to remain silent and request to speak with a defense attorney.
What happens if you gave a statement but you were not read your Art 31 rights? Art 31(d) says that "no statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial." Even if you were read your rights, it is important that you clearly inform your defense attorney of all the facts and circumstances surrounding your interrogation such as how long the interrogation lasted, how much sleep you had prior to the interrogation, whether you were given restroom or smoke breaks, the time of day, and any other details you think might be important.
What is an Article 32 investigation and is it required for my case?An Article 32 Investigation can look and feel a lot like a trial, but it is important to remember that it is not a trial, but simply a formal investigation. Present at this investigation will be the Preliminary Hearing Officer (PHO) who acts like a judge but is actually the investigator. A prosecutor will also be present as well as you and your defense attorney. During the Article 32 investigation, the prosecutor will present evidence on behalf of the government supporting their case. You and your attorney will be able to present evidence on your behalf, will receive a copy of the evidence presented by the government, and will be able to cross-examine any witnesses called by the prosecutor. The Article 32 investigation is typically only conducted if the convening authority in your case is considering referring your case to a general court-martial. Article 32 states that "no charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made." At the end of the Article 32 investigation, the PHO will make recommendations to the convening authority regarding the disposition of the case. The PHO does NOT make findings of guilt or innocence.
Similar to an interrogation, while at the Article 32 investigation hearing, you must again be advised of the charges against you. Additionally, you have the right to be represented by a defense attorney at this hearing. This defense attorney will either be a military counsel detailed to you or may be a military defense counsel of your choice if that attorney is reasonably available. You may also be represented by civilian defense counsel of your choice at your own expense.
Finally, it is important to remember that you have the right to waive your Article 32 investigation if you choose to do so. There are many reasons why waiving or demanding your Article 32 investigation may or may not be in your best interest. This is a very important decision that you should discuss thoroughly with your defense attorney.