4. You have the right to obtain and consult with a
lawyer, either a civilian lawyer retained by you at your
own expense, or, if you wish, a military lawyer who will
be appointed to act as your counsel without cost.
5. You have the right to have a retained civilian
lawyer or an appointed military lawyer present with you
during this interview.
6. You have the right to terminate this interview at
any time and for any reason.
7. Do you understand?
8. Do you waive your right to counsel? (If the
accused has such a right.)
9. Do you consent to make a statement?
Ascertaining that the accused or suspect fully
understands his or her rights is particularly important,
for in the absence of understanding there can be no
intelligent choice to exercise or waive the rights. A court
may later look not only to the words used in giving the
warning, but also to the suspects age, intelligence, and
experience in this regard.
Documenting the Warning
Your command will likely have preprinted local
forms that detail these rights. Typically the accused will
be advised according to the form and will sign on the
form to indicate that he or she has been advised of his
or her rights.
The form is then retained in case it
becomes necessary to prove in court that the warnings
were properly given. If your command does not have a
preprinted form, a sample appears in appendix A-1-m of
the JAG Manual.
When only the Article 31 warning is required (that
is, when the accused is going to NJP and has no right to
counsel), the warning will eliminate references to the
right to counsel and is given in the manner prescribed
by the article itself. Article 31(b) imposes the three
1. That the accused or suspect be informed of the
nature of the accusations against him or her
2. That the accused be told that he or she has the
right to remain silent
3. That the accused be advised that any statement
made by him or her maybe used as evidence against him
or her at a trial by court-martial
It is essential not only that the accused understands
the advice given, but also that the person giving the
advice makes certain (1) the accused understands this
advice and (2) the accused affirmatively waives his or
her rights before any statement is obtained.
Accordingly, a proper Article 31 warning could be
phrased as follows:
Example: (The accused is suspected of stealing two
wallets that contained a total of $30.)
Seaman Thief, I advise you that I suspect
you of stealing two wallets from the lockers
of Seaman One and Seaman Two last night.
I advise you that you have the right to remain
silent and if you do say anything, what you
say may be used against you as evidence in
a trial by court-martial. Do you understand?
Do you waive your rights and desire to make
It is not sufficient merely to read Article 31 to the
suspect or the accused. Neither is it in compliance with
Article 31 to tell the suspect or accused that he or she
need not incriminate himself or herself.
SEARCH AND SEIZURE
What is a search? What are the rights of an
individual being searched? What procedures must be
followed in requesting and conducting a search? What
are the different types of searches? You may not be
involved in conducting a search, but you should be
familiar with the procedures for preparing the paper
work associated with searches and the rights of
individuals being searched. The following discussions
are intended to help you answer the previous questions
and become familiar with the standards that must be
followed to make sure a search has been conducted
properly. In addition to these discussions, you should
familiarize yourself with the applicable command
instructions and JAG directives on search and seizure
Each military member has a constitutionally
protected right of privacy. However, a service
members expectation of privacy must occasionally be
infringed upon because of military necessity. Military
law recognizes that the individuals right of privacy is
balanced against the commands legitimate interests in
maintaining health, welfare, discipline, and readiness,
as well as by the need to obtain evidence of criminal
Searchcs and seizures conducted according to the
requirements of the United States Constitution will
generally yield admissible evidence. On the other hand,
evidence obtained in violation of constitutional
mandates will not be admissible in any later criminal