You have the right to remain silent
By Capt. Scott Taylor, 30th Space Wing Area Defense Counsel
/ Published October 01, 2012
VANDENBERG AIR FORCE BASE, Calif. -- The phrase, "you have the right to remain silent" is a part of our culture. Typically we see TV detectives or police officers delivering that line to some lawbreaker who the audience knows to be guilty as handcuffs are being placed on the perpetrator's wrists. It makes for good television, but it's not very realistic.
The Miranda Warnings are read to a suspect by a police officer before asking questions. They are called Miranda warnings because they come from a Supreme Court case titled US v. Miranda, where a criminal defendant named Miranda challenged his confession to the police. The Supreme Court said that the 5th Amendment to the Constitution of the United States requires police to give four warnings to any suspect before questioning: You have the right to remain silent, anything you say can and will be used against you, you have the right to an attorney, if you cannot afford an attorney, one will be provided for you. The Supreme Court has long protected a suspect's right to not be forced to make incriminating statements about him or herself. Few police officers read Miranda warnings from memory because they are so important, and in fact they all carry a card in their wallet or pocket that they read from. Every police officer knows that not advising someone of their rights, or getting them wrong, is always bad news.
Article 31 of the Uniform Code of Military Justice extends the Miranda Warnings to military members and provides additional protections that civilians are not afforded. Unlike Miranda Warnings, which are only issued when a suspect is in custody, an Article 31 rights advisement is required when any member of the military suspects another military member of a crime. What this means to you is that if someone is reading Article 31 rights to you, they suspect you of a crime. After being read your rights, you will be asked if you understand those rights and are willing to speak. No one can tell you how to answer that question, however you should know that agreeing to talk to authorities is rarely in your best interests. When someone advises you that anything you say can and will be used against you, they likely mean it. The Supreme Court has issued some guidance to the general public facing that decision in 1949 when they stated in Watts v. Indiana, "Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances."
Consulting with an Attorney
I have been a practicing attorney for seven years, and have frequently met clients after they already made the decision to talk to the police. Although everyone has the right to remain silent, few people have the ability. If you are in a position where someone is advising you of your Article 31 rights, you have the absolute right to not answer any questions and talk to an attorney. At Vandenberg, that attorney will likely be me, and I will always make time for anyone suspected of a crime. If you consult with me about that decision, we will talk about the pros and cons about making a statement. Occasionally, making a statement could persuade authorities of your innocence. However, we will discuss all of the factors why making a statement is not a good idea. For example, maybe you are nervous, emotional, or scared. Maybe I can help you articulate your position better than when you are placed on the spot and confronted. We would want to make sure anything you say cannot be taken out of context, but instead will be recorded accurately. I will certainly tell you that Supreme Court law allows police to intentionally lie to convince you to make a statement against your interests. Each case is different, and no matter what you are facing I will always make myself available to advise you if you have been read your rights. If I am not immediately available, there is never any harm in waiting until we get a chance to talk.
Regardless of whether you made a statement, you could be charged with an offense and taken to courts-martial. If that happens, you will have a decision that is yours and only yours to make; whether to take the witness stand in your own defense. Again, there are several reasons both for and against taking the stand in your own defense. Obviously, if you committed the offense you may not likely take the stand, but that is not the only reason for not taking the stand. If you made a statement to the police, and because you were nervous or scared, your previous statement might be inconsistent with your potential testimony. Those inconsistencies could be used to make you appear as a liar. Some other common reasons not to take the stand include being a poor public speaker, appearing nervous when your entire life or career is on the line and being nervous or scared when it means you would be subjected to cross examination. Juries are ordered in every case that should you not take the stand in your own defense, it cannot be held against you. There are many good reasons a criminal defendant would choose not to testify, and if you decide not to take the stand, we absolutely protect that decision; and the Constitution requires that no one can make any inference that you are guilty.
Dealing with Law Enforcement
The majority of people who deal with law enforcement are often intimidated and ill-at-ease, since most of us do not deal with police officers every day. Law enforcement officials are specifically trained how to get you to talk. Before you are read your Article 31 rights, almost every law enforcement official will talk with you about unrelated issues and talk about common interests with you in order to build a rapport with you. Before they begin to ask you about the subject they are really there for, they will read you a rights advisement. Remember that no matter how friendly law enforcement appears, they are there to do a job and they usually do it very well. Just because a detective appears to be a nice person does not mean they will not document everything you say so it can be used against you in court. In fact, that is a common tactic to get you to make statements against your interests. When they tell you that anything you say can and will be used against you, take them at their word.
At each stage in the criminal process, you have the decision at several steps along the way, to decide to testify or remain silent. At each step in the process, I or another area defense counsel will be there to ensure you are fully informed of your rights and help you weigh the pros and cons of that decision to fully protect your rights. You have the right to remain silent, but you have to be the one to assert your rights; we cannot do it for you.