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What rights do members of the military have when being interrogated by the authorities?

UPDATED: February 16, 2011

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In the civilian world, one must be advised of his or her rights only during a custodial interrogation. However, the rights of a military member are actually somewhat broader. Article 31 of the UCMJ, 10 U.S.C. 831, requires a rights warning before any military suspect is interrogated - whether the interrogation is “custodial” in nature or not.

Five Basic Rights

  1. The right to stay silent;
  2. The right to talk to a lawyer;
  3. The right to stop an interrogation;
  4. The right to leave an interrogation;
  5. The right to say “no” to a search.

These rights have to be very specifically stated in order to be valuable. Simply saying “I think I might want to talk to someone” does not equal asking for lawyer, nor does it equal a demand to stop the interrogation. However, saying “I won’t speak without a lawyer” is clear enough to stop an interrogation. For some reason it does not end, then choose the only sure way to stop it: simply stop talking. The right to remain silent is very important here. While most interrogators are trained (and legally permitted) to be able to lie effectively to a suspect (for the purpose of obtaining incriminating evidence, etc.), the same protections do not apply to those being interrogated; i.e. - if you choose to state a lie instead of saying nothing, you may face potential prosecution for lying even if you did nothing wrong to arrive at that interrogation.

Spousal Privilege

One of the problem areas for protecting your rights is when a spouse is interrogated. The military investigators increasingly describe their interrogations by other names. So when they interrogate a spouse, they will call it an interview or a meeting or an assessment. However, the military has retained what is called “spousal privilege.” Unless an alleged crime is against a family member, the spouse cannot be made to testify, no matter what the interrogators say.

Improper Interrogation Practices

Just as with civilian interrogations, violations of basic rights can result in excluding much, or even all, of any evidence obtained illegally. If the questioner did suspect the member being questioned, and did not read him his rights, any evidence collected would likely be considered "inadmissible" by a court, and thrown out.

Unfortunately, in military law, an attorney does not have to be provided until charges are formally made against a subject. This gives interrogators a chance to exploit the stress of waiting for a lawyer. For instance, a common answer to “I want a lawyer” is "You can have one, when one is available" or, “Why? You aren’t being charged.” When assistance does appear, it may be a paralegal whose advice is to “exercise your rights..." The lack of early, aggressive, and effective legal advice can undermine the rights of a suspect under interrogation. As a result, many military personnel will explicitly seek out the services of a civilian lawyer when they are first interrogated, or have one on retainer.

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