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Criminal defense attorneys are often asked by clients whether charges against them can be dismissed because law enforcement officers did not advise them of their rights before arresting them.  Using a recent Federal case as an example, the purpose of this article is to examine the distinction between the civilian Miranda warnings and a military suspect’s rights under Article 31(b) of the Uniform Code of Military Justice (UCMJ).

Many are familiar through TV crime dramas or movies with the famous Miranda warnings.  What is not always understood about the rule first announced in 1966 by the Supreme Court is the limitations on the rule and the possible remedy if there is a violation of the rule by the police.  There are also significant distinctions between Miranda and the rights a military suspect is entitled to under Article 31, a rule that predates the Miranda decision by over a decade.  The biggest limitation on the Miranda rule is that a suspect must be in custody to trigger the requirement to advise them of their rights.  A person is considered to be in custody when a reasonable person in the same circumstances would not feel that they were free to leave.  Assuming a civilian defendant was in custody and was subjected to questioning by law enforcement without first being advised of their rights, the remedy is the exclusion of the incriminating statements at trial.  A violation, however, does not mean that a criminal prosecution cannot continue if there is other evidence a crime was committed.

By comparison, Article 31 requires that anyone who is subject to the UCMJ, whether or not they are a designated law enforcement officer, advise a military suspect of the nature of the allegation, that the person has a right to remain silent, and that anything they say may be used as evidence against them regardless of whether the suspect is in custody.

A recent published decision from the Eleventh Circuit Court of Appeals illustrates this distinction in the context of a child pornography prosecution of an active duty Navy member in Federal court.  The defendant was charged in Federal court with violating federal child pornography laws after his ex-wife found images of child pornography on his personal computer that she took when she moved out of the house.  She turned the computer over to agents from the Naval Criminal Investigative Service (NCIS) who sent an agent to his workplace to interview him.  The defendant was told that he was not in custody and he was not handcuffed or retrained.  Prior to questioning, the agent advised the defendant of his Article 31 rights using a standard military form.  After acknowledging his rights, the defendant then made incriminating statements that were later introduced in evidence after his motion to suppress the statements was denied.

The basis of the defendant’s motion to suppress his incriminating statements was that the waiver form he signed did not satisfy the Fifth Amendment and Miranda because the military form was incorrect in describing his right to an appointed civilian attorney if he could not afford one.  The court did not address the issue of whether he was in custody because it found that even if he was not free to leave, the military form reasonably and adequately conveyed the Fifth Amendment and Miranda rights even if it did not mention those rights by name.