1. As first sergeants we often are required to counsel, admonish, reprimand and hold discussions with our personnel. As long as we are doing all the talking, the individual’s Article 31 and constitutional rights do not become an issue. But the moment we suspect someone of an offense and start asking questions or taking any action in which an incriminating response is either sought or is a reasonable consequence of such questioning, we must advise the suspect of his/her rights. Properly reading someone their rights enables the government to preserve any admissions or confessions for later use as evidence. Unadvised admissions and confessions cannot normally be admitted as evidence at trial. Additionally, any evidence that may have been obtained as result of the unwarned confession is considered "fruit of the poisonous tree" and is also usually excluded from use at trial.

2. Any person subject to the UCMJ must advise another individual of their Article 31 rights if they suspect that person of a criminal offense, and they are interrogating (questioning) the person as part of an official law enforcement investigation or disciplinary inquiry. Commanders, first sergeants and military supervisors are presumed to be acting in a disciplinary capacity when questioning a subordinate.

3. Article 31 Rights must be given whenever there is Interrogation. Interrogation includes any formal or informal questioning in which an incrimination response is either sought or is a reasonable consequence of such questioning. Interrogation does not have to involve actual questions. Sometimes actions, if they are intended to elicit responses, are deemed to be interrogation. Once again, commanders, first sergeants and supervisors are held to an especially high standard when in doubt, give rights advisement and consult your Staff Judge Advocate.

4. What must Article 31 Rights include?

....a. Article 31 Rights include the general nature of the suspected offense. Legal specifications are not necessary, lay terms are okay. You must be specific enough so that the suspect understands what offense you are questioning him/her about.

....b. The suspect’s right to remain silent.

....c. The consequences of making a statement.

....d. Although it is not necessary that the advisement be verbatim, it is best to read the rights directly from a rights advisement card (AF Fm 189 in the Air Force) or as directed/available in your branch of service.

....e. Even though Article 31 does not include a right to counsel (that comes from the Constitution) is listed on the rights advisement card and should be included when reading a suspect his/her rights.

5. Rights Advisement must be understood and acknowledged by the suspect. The suspect must affirmatively acknowledge understanding of the rights, and affirmatively waive his/her rights consent to make a statement without counsel present. Consent to make a statement cannot be obtained by coercion, threats, promises, or trickery. Be cautious when advising an intoxicated person of his/her rights. If significantly drunk, he/she may be legally incapable of knowingly and voluntarily waiving his/her rights. If the suspect equivocates over whether or not to assert his/her rights, clarify whether or not they will waive their rights. Do not proceed with questioning until any doubt is resolved.

6. If the individual indicated a desire to remain silent, cease questioning. (This does not mean, however, that you cannot give the individual orders or directions on other matters. Just be careful not threaten.)

7. If the suspect requests counsel, stop all questioning. Inform the Staff Judge Advocate, and get advise before re-initiating any questioning. When a suspect requests counsel during an interrogation, no more questions can be asked until counsel is present. There are several complex legal rules relating to re-initiating questioning once a suspect has requested counsel. The rules vary depending on whether or not the suspect has been in continuous custody, whether or not the suspect re-initiates the questioning, and whether or not you are questioning about the same or a different offense. As a rule of thumb, if a suspect has asserted his/her rights, do not speak to that individual again unless you have consulted with the Staff Judge Advocate regarding this area of the law.

8. If the individual waives his/her rights and agrees to talk when possible: obtain the waiver in writing (AF Fm 1168 for the Air Force) or as directed/available in your branch of service; have a witness available; try to get the statement in writing (handwritten is best); if, after electing to talk, the suspect changes his/her mind, stop the questioning; prepare a memorandum for the record (MFR) immediately after the session ends. Include:

....a. Where the session was held.

....b. What and when you advised the suspect.

....c. What the suspect said.

....d. What activities took place (suspect sat, stood, smoked, drank, etc.).

....e. What the suspect’s attitude was (angry, contrite, cooperative, combative, etc.).

....f. Duration of the session with inclusive hours.

I am __________, (first sergeant of the) _________, _________ (base). I am investigating the alleged offense(s) of ___________, of which you are suspected. Before proceeding with this investigation, I want to advise you of your rights under Article 31 of the Uniform Code of Military Justice. You have the right to remain silent, that is, to say nothing at all. Any statement you do make, either oral or written, may be used against you in a trial by court-martial or in other judicial, nonjudicial or administrative proceedings. You have the right to consult with a lawyer prior to any questioning and to have a lawyer present during this interview. You have the right to military counsel free of charge. In addition to military counsel, you are entitled to civilian counsel of your own choosing at your own expense. You may request a lawyer at any time during this interview. Have you previously requested counsel after advisement of rights? (If the answer is yes, stop. Consult your Staff Judge Advocate before proceeding).

If you decide to answer questions during this interview, you may stop the questioning at any time. Do you understand your rights? Do you want a lawyer? (If the answer is yes, cease all questioning). Have you already consulted an attorney about this matter? (If the answer is yes, stop questioning and contact the Staff Judge Advocate). Are you willing to answer questions? Do you understand that your are free to end this interview at any time?

I am __________, (grade, if any, and name), a _________ (military police, first sergeant, CID/AFOSI). I am investigating the alleged offense(s) of __________, of which you are suspected. I advise you that under the Fifth Amendment to the Constitution you have the right to remain silent, that is, to say nothing at all. Any statement you make, oral or written, may be used as evidence against you in a trial or in other judicial or administrative proceedings. You have the right to consult with a lawyer and to have a lawyer present during this interview. You may obtain a civilian lawyer of your own choosing, at you own expense. If you cannot afford a lawyer, and want one, one will be appointed for you by civilian authorities before any questioning. You may request a lawyer at any time during the interview. If you decide to answer questions, you may stop the questioning at any time. Do you understand your rights? Do you want a lawyer? (If the answer is yes, cease all questions at this point). Are you willing to answer questions? Have you previously requested a lawyer after rights advisement? (If the answer is yes, top immediately, consult your Staff Judge Advocate before proceeding).