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fbi questioning

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potterss

Junior Member
What is the name of your state?:cool: What is the name of your state?texas
when a military member is questioned by the fbi what rights do they ? 1. if they have not be charge with any thing.
 


BelizeBreeze

Senior Member
potterss said:
What is the name of your state?:cool: What is the name of your state?texas
when a military member is questioned by the fbi what rights do they ? 1. if they have not be charge with any thing.
The same rights as a civilian.
 

badapple40

Senior Member
OK, he isn't charged, but the question remains whether or not he is suspected in connection with a crime. If this is a mere witness interview, I'd agree that he has no rights advisement under either military or civilian law.

Article 31 is broader than Miranda, in that mere suspicion or possible suspicion of a crime is enough to trigger those rights and there is no custody requirement under Article 31. They also must be apprised of the crimes they are being investigated for.

Put plainly, even reading his post, it appears to me that the inference is that he is at least being investigated for something, else why ask the rights question in the first place? If so, then Article 31 applies.
 

BelizeBreeze

Senior Member
And WHERE does Article 31 apply? Are you making the statement that an active duty individual who is suspected of Bank Robbery in Pleasenton, Kansas while being stationed at Camp LeJune and is subsequently questioned by the FBI in Billings, Mt can invoke Article 31? (that's a hint)
 

badapple40

Senior Member
No, because in the hypothetical you propose, it is highly probable that there is no military investigation/military decision-making beforehand and thus the fact the perp. is a military member is merely incidental to the investigation. I make the suggestion that if the crime or investigation has military involvement or military personnel had something to do with the investigation, including directing the FBI agents to the person in question, then Article 31 rights apply. No court will allow military commanders to make an end-run around Article 31 by simply having the FBI handle the investigation vis-a-vis in house components (OSI, NCIS, CID, etc.)

There is not enough information at this point to make a informed decision about what rights apply, until/unless we can figure out the who, what, why, where, etc. questions regarding the questioning.
 

BelizeBreeze

Senior Member
badapple40 said:
There is not enough information at this point to make a informed decision about what rights apply, until/unless we can figure out the who, what, why, where, etc. questions regarding the questioning.
NOW you're getting it. You made the assumption that Article 31 rights apply and we don't know any facts except that the FBI is wanting to question the poster.

And by the way, Article 31 rights ONLY apply when the questioning is done by a member of the military including a member of the chain of command. It is used to protect the military member from the quandry of what might appear during questioning as 'following an order' or protecting individual rights of self-incrimination.

Where the two rights (constitutional and Article 31) collide, the Constitutional rights prevail.
 

badapple40

Senior Member
Actually, to clarify, Article 31 applies whenever a service-member is questioned by not just military members, but anyone acting as an agent of the military, to include not just their in house folks (OSI, NCIS, CID, etc.), but also AAFES investigators (I argued an appellate case regarding this, and obtained a reversal of a court-martial conviction based on no Article 31 advisement), and other government entities who are acting at the direction or in concert with military folks (e.g., as respects the original poster, if the FBI contacted his command first and asked to question him or was told it was ok to question him, etc., then Article 31 would apply).

Its really been interpreted broadly by, in particular, the Court of Appeals of the Armed Forces, to prevent the end-run problem that I mentioned earlier.
 

badapple40

Senior Member
BelizeBreeze said:
NOW you're getting it. You made the assumption that Article 31 rights apply and we don't know any facts except that the FBI is wanting to question the poster.

And by the way, Article 31 rights ONLY apply when the questioning is done by a member of the military including a member of the chain of command. It is used to protect the military member from the quandry of what might appear during questioning as 'following an order' or protecting individual rights of self-incrimination.

Where the two rights (constitutional and Article 31) collide, the Constitutional rights prevail.
I don't see where Article 31 and the constition would ever collide. The Constitution provides the "floor" or minimum. Article 31 provides more rights than those found in the Constitution. As with anything, the states or the federal government are always free to legislate more rights than those provided under the constitution, but may not fall below the constitutional minimum.
 

BelizeBreeze

Senior Member
And although I could argue jurisdictional issues, it's ALL moot until the poster comes back and clarifies the EXACT facts surrounding his situation. RIGHT?
 

potterss

Junior Member
suspect ,no charged, just investigated.

after i two weeks of being a suspect in a crime in a fbi investigation, i was released by my brigade commander to exit the army. should i get something in writing saying am no longer a part of this investigation for future reference. Are at any time i can be requestioned are arrested about the incident ? Is it true that a civilian has more legal rights then the military? are should i just forget about it .
 

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