Right to Remain Silent and to Request an Attorney

October 28, 2019

It is almost universally known that civilians have a right to remain silent and to request an attorney before speaking to the police. However, many people seem to think that those same rights are not afforded to members of the military. This could not be further from the truth. Servicemembers have the right to remain silent and to request an attorney.

Military investigators and Commanders know that Servicemembers are trained to answer questions from their superiors and will attempt to leverage this during interrogations and conversations. A common tactic is as follows:

A Servicemember will be ordered by his/her Commander to the Military Police/Criminal Investigative Division Office. He/she will be escorted there by members of his/her unit. The Servicemember will be searched and all of his/her belongs, including a cell phone, will be placed in a locker. The Servicemember will be brought to an interrogation room and placed inside alone. The room consists only of two chairs and maybe a desk for the investigator. There is no clock. The Servicemember is left to sit there for several hours with nothing to do and without his/her phone. Finally, after several hours, an investigator comes in. The investigator makes some small talk with the Servicemember and refuses to tell him/her why they are being investigated. The investigator eventually reads him/her their rights and then starts questioning the Servicemember about his/her alleged misconduct.

Everything listed above is an interrogation tactic. They isolate Servicemembers, make them nervous, make them impatient, and make it seem like their Commander is ordering them to be in the building to answer the investigator’s questions.

A Servicemember in the above situation has the option to say “I am exercising my right to remain silent and I don’t want to make a statement. I want to see an attorney.” I tell my clients to keep repeating this statement if the investigators won’t stop. For example:

Investigator: What were you doing on May 24th 2019?
Servicemember: I am exercising my right to remain silent and I don’t want to make a statement. I want to see an attorney.
Investigator: I just want to know what you were doing that day, why are you being so hostile?
Servicemember: I am exercising my right to remain silent and I don’t want to make a statement. I want to see an attorney.
Investigator: I am going to have to tell your Commander you won’t answer my simple question.
Servicemember: I am exercising my right to remain silent and I don’t want to make a statement. I want to see an attorney.
Investigator: Fine, I will just tell your Commander to give an Article 15 for not being cooperative with the police.
Servicemember: I am exercising my right to remain silent and I don’t want to make a statement. I want to see an attorney.
Investigator: At least tell me if you know PV2 Crockett.
Servicemember: I am exercising my right to remain silent and I don’t want to make a statement. I want to see an attorney.
Investigator: You are a jerk. I was just trying to have a conversation. No one even thinks you are guilty of anything. Just answer my questions man. I thought you were a good guy. You are looking really guilty now that you are being so hostile. Do you know PV2 Crockett?
Servicemember: I am exercising my right to remain silent and I don’t want to make a statement. I want to see an attorney.
And so on…

Investigators know that they can’t question a Servicemember after he/she has exercised their right to remain silent and to speak to an attorney. While a Servicemember may want to talk to the investigators, it can never hurt to talk to a lawyer first. Even if a Servicemember has nothing to hide, if investigators read a Servicemember his/her rights, they suspect him/her of committing some sort of misconduct. Furthermore, despite investigator’s threats, if a Servicemember is read his/her rights OR their answer to a question would be incriminating, he/she cannot get in trouble for refusing to answer.

It is not always this simple. It is easy for a Servicemember to realize they might need to remain silent/request a lawyer when they are brought to the police station. However, Servicemembers have the same rights when being questioned by members of their Command. Sometimes a member of the Command will ask a Servicemember questions that could result in incriminating responses. If this happens, Servicemembers have the same right to decline to answer the question and/or request to speak to a lawyer. Servicemembers should know that a verbal incriminating statement to members of his/her Command can be used at a Court-Martial just like an incriminating written statement to the police. See Attorney Barry’s Article on Whether Sworn Statements are Special.

The perceptions that Servicemembers do not have the right to remain silent and to request an attorney are very, very dangerous. These perceptions highlight the need for a Servicemember to be represented by an experienced attorney who can appropriately advise a Servicemember.

This article was written by Attorney Matthew Barry

The Law Office of Matthew Barry represents clients worldwide. He has offices on the East Coast, West Coast, and in the Central U.S.