DON’T TALK - Changes to Rights Advisal

Law enforcement continues to shorten and dilute their constitutionally and statutorily required Rights Advisals for suspects.  Many people are vaguely familiar with the Miranda warnings which have been established since Miranda v. Arizona was decided by the U.S. Supreme Court in 1966.  In 1951, even before Miranda was decided, Servicemembers were protected from being compelled to make incriminatory statements by Article 31, UCMJ.  Article 31(b) states:

No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.

However, Article 31 does not prevent law enforcement from trying to sweet talk servicemembers into answering questions without first speaking to an attorney and without an attorney present.  Law enforcement regularly spends 10-15 minutes of speaking with a suspect before giving the required Rights Advisal.  During this time, they actively attempt to lower the suspect’s guard.  Law enforcement may crack jokes, talk about home, talk about promotions or career aspirations, or any other innocent, casual topic.  Make no mistake: if you are sitting in an interrogation room with law enforcement, they are not your friend.  They want you to help them prosecute you.

In March of 2023, US Army CID changed their policy regarding the Rights Advisal.  They no longer use the standard DA Form 3881 but instead use a new form, the CID Form 588-E.  Whereas the DA Form 3881 has a Non-Waiver section in which suspects can actively state they (1) want an attorney and/or (2) they do not want to answer any questions, CID Form 588-E does not have any such section.  CID will quickly read their new form to suspects, ask if the suspect has any questions about the form, and then quickly ask the suspect to sign the only block present on the form: a waiver of one’s Constitutional rights.  The new form is shorter than the DA Form 3881 and the time they spend reading it is often shorter.  This is yet another attempt by law enforcement to subtly ease suspects into making a statement without an attorney.

Speaking from experience, one of the most infuriating cases Attorney Young personally dealt with involved a junior enlisted male whose honest, detailed description of a night of drinking with a female NCO led him to be prosecuted for sexual assault.  Even though the junior enlisted told law enforcement that the NCO repeatedly encouraged him to drink alcohol with her and ultimately asked him to have sex with her, he was treated as a criminal.  Although justice was done and he was acquitted of all charges, his case would have been easier had he never spoken with law enforcement.  In all likelihood, his case would have never gone to trial had he refused to speak to law enforcement.

 Here at Crisp & Associates, we always stand ready to assist you or your loved ones before they speak with law enforcement.  Speaking with an attorney before deciding to give a statement can never hurt your case.  We can interface with law enforcement or your chain of command before a scheduled interview.  We can gameplan how any statements or information you may give could be used against you. 

In the movies you often here “the truth shall set you free.”  Often, it is difficult to see how telling the truth to law enforcement could hurt you.  If law enforcement or the powers-that-be believe you are a suspect, your honest statements will be twisted into something sinister.  No matter what law enforcement says, no matter what forms they use, do not speak to law enforcement before consulting an attorney.  Your freedom may depend on it.