You had a run in with civilian police over the weekend. Good news travels fast and bad news travels even faster. Your command is going to find out. What do you do? Do you let them know yourself? Are you legally obligated to report yourself? The rumor mill is buzzing. You know it is only a matter of time before someone asks you what is going on. Military questioning is soon to follow.
[NOTE: Whether or not you are obligated to self-report depends on your branch of service and in certain branches of service what was it that happened between you and law enforcement (was it an arrest? What kind of incident was it?)]
People are asking you, “What’s going on?” What do you have to say? Are you suspected of being in trouble? What do you do if your command asks you about the rumor mill and if you had an encounter with civilian law enforcement? Is your leadership being nosy or looking for information? No matter the source, military questioning can create a stressful situation.
[A separate blog post will address what, if any, duties you have to report yourself to your command when you have encountered civilian authorities]
YOU should choose to remain silent and instead opt to talk to a lawyer. But it is also important to know when you can even be asked about potential misconduct i response to military questioning.
When anyone reasonably suspects you of committing misconduct, that person (even in some instances when that person if your military equal or peer) has to advise you of your rights IF THEY WANT YOUR ANSWERS TO BE USED AGAINST YOU LATER. Understand that the military gives you MORE protections than in the civilian world, where only when you are in custody and being interrogated do the police have to read you Miranda rights. To know what Article 31(b), UCMJ expressly states, please read the answer to one of our Frequently Asked Questions.
The highest court of military appeals recently ruled concerning the “mixed purpose” exception and the idea of “operational” or emergency risk exception to Article 31(b) UCMJ. What? There are exceptions to the rule? The Court of Appeals for the Armed Forces (CAAF) in United States v. Ramos, No. 17-0143, (C.A.A.F. July 19, 2017) held that Ramos’ rights were violated and that law enforcement should have advised Ramos of his Article 31(b) rights after the threat of harm they were initially investigating was no longer imminent and the agents had shifted their focus into a disciplinary or law enforcement as the primary purpose. The lesson of Ramos is that military leadership or military law enforcement may ask a Servicemember about a possible threat or emergency during military questioning so long as the primary purpose is not to investigate for future disciplinary action.
Please remember, at all times Servicemembers may and SHOULD invoke their right to remain silent and the right to speak with a lawyer regardless of whether or not he or she is innocent. The old adage of “having nothing to hide” does not mean that you should speak to your command without the help of a lawyer. Do not openly answer questions without first getting advice from an experienced UCMJ attorney. Respectfully tell whomever is trying to question you that you want to speak to a lawyer.
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