Article 31(b) Rights in the Military Justice System
Civilian criminal defense lawyers
In a circumstance where Article 31(b) would require an advice of rights, trial counsel must remember to advise them of their rights. Article 31(b); See also ABA Standards for Criminal Justice: Prosecution Function 3-3.2(b); LTC H.L. Williams, To Read or Not To Read, ARMY LAW., Sep. 1996 (discussing whether defense counsel has an obligation if interviewee is suspected of crime); ABA Standards for Criminal Justice: Defense Function 4-4.3(c) (guidance that defense counsel has no independent duty to advise of right to non-incrimination).
Once charges have been brought against an individual such that they are an “accused,” Army Rule 3.8(c) directs that trial counsel shall “not seek to obtain from an unrepresented accused a waiver of important pretrial rights.”
One ethical issue can arise regarding “improperly” advising a witness of their rights. For instance, if the defense indicates that it intends to call an alibi witness who would inculpate himself while exculpating the defendant, advising the witness of his rights could be seen as a method to rob the defendant of exculpatory evidence. The ABA Standards indicate that “a prosecutor should not so advise a witness for the purpose of influencing the witness in favor of or against testifying.” ABA Standards for Criminal Justice: Prosecution Function 3- 3.2(b). The best practice would be to approach the military judge and obtain a ruling before taking such a witness’ statement.
Relatedly, trial counsel should not interfere with, threaten, or seek to punish persons seeking counsel in connection with an investigation.
See ABA Standards for Criminal Justice: Prosecutorial Investigations 1.4(h).