SJA, NTC and Fort Irwin
It is very important for Soldiers to know their rights when being accused of committing a crime under the Uniform Code of Military Justice.
Soldiers’ rights are most commonly referred to as “Article 32(b) rights” and can be found in the UCMJ. Briefly, these rights are: (1) the right to be informed of the charges against you; (2) the right to be told your accuser; (3) the right to be represented by counsel; (4) the right to be told of the witnesses and evidence against you; (5) the right against self-incrimination (i.e. the right to remain silent); (6) the right to have witnesses produced on your behalf; (7) the right to produce evidence, and; (8) the right to make a statement in any form.
All of these rights afford Soldiers the opportunity to defend themselves. The right to be informed of the charges against you is in place because how could you possibly produce evidence to protect yourself if you don’t know what you’re being accused of? The right to be informed of your accuser was established so no one could, without consequences to themselves, anonymously ruin someone else’s life by making wild accusations. The right to be represented by counsel was established to provide you with a specifically trained legal expert to speak on your behalf at no cost to you. The right to be informed of the witnesses and evidence against you allows you to prepare an effective defense. The right against self-incrimination requires the government to prove its case against you with evidence that doesn’t come from you. The right to produce witnesses and other evidence enables you to defend yourself. The right to make a statement in any form allows you to plead your own case and explain your own actions in any way you want, including through silence.
Imagine a private takes Christmas leave for 30 days, and upon his return, his commanding officer calls him into his office. The CO informs the Soldier that he is suspected of abusing illegal substances. The CO questions the private and says that he is issuing a lawful command that requires answering the questions. The CO informs the Solider that his accuser’s name is not important, because it will have no effect on any punishment issued. The CO finishes by telling the private that he will be afforded the opportunity to speak with legal counsel only after an appointment is arranged.
What should have happened? First, if the CO suspects the private committed an act of misconduct, he should have read the rights mentioned above and then asked the Soldier to waive those rights and make a statement. Without being read his rights, the Soldier might not be aware of the fact that he does not have to answer any of the CO’s questions or make any statements, and that he can go immediately for legal advice. Though the private is generally subject to his CO’s lawful commands, the command to “spill it” in this case is unlawful. The CO also did not disclose the accuser’s identity. The CO has gained evidence that likely can’t be used in court against the Soldier.
If you have any questions about this article or your rights, visit the Trial Defense Service in building 288 or call 380-3282.