Article 31 of the Uniform Code of Military Justice gives service members a robust right to remain silent when questioned about a suspected offense. The questioner must inform the suspect of the nature of the accusation, advise that the suspect does not have to make any statement, and warn that any statement may be used as evidence at a court-martial. A frequent and important question follows: if a service member exercises that right and stays silent, can the prosecution later use that silence against them at trial? As a general matter, the answer is no. Silence in response to an Article 31 advisement is protected, and using it as evidence of guilt is improper.
The Right to Silence Carries a Right Not to Be Penalized for It
The right to remain silent would be hollow if exercising it could later be paraded before the members as a sign of guilt. For that reason, military law treats the invocation of the right to silence as protected conduct that generally cannot be used against the accused at trial or in administrative proceedings. The logic is straightforward. If a service member is told they may remain silent, and then their silence is offered to suggest that an innocent person would have spoken up, the advisement becomes a trap rather than a protection. Both the Fifth Amendment privilege against self-incrimination and Article 31 itself stand against that result.
What the Rules of Evidence Provide
The Military Rules of Evidence reinforce this protection. Military Rule of Evidence 304 addresses confessions, admissions, and related issues. It recognizes that a person’s failure to deny an accusation is not necessarily an admission of its truth, which undercuts any argument that silence equals agreement. The rule also restricts comment on an accused’s exercise of the right to silence. Trial counsel comments on an accused’s silence in response to a post-apprehension accusation have been treated as error precisely because they collide with the protections of Rule 304 and the Fifth Amendment right to silence. In practical terms, the prosecution generally may not argue or imply to the members that the accused’s decision to stay quiet shows consciousness of guilt.
Pre-Advisement and Post-Advisement Silence
The clearest protection applies once the accused has been advised and chooses to remain silent. Silence that follows a proper Article 31 advisement is an exercise of a recognized right, and the government generally cannot use it substantively to prove guilt. The same protective principle reaches silence after apprehension when an accusation has been made, because allowing comment on that silence would penalize the assertion of the privilege.
The analysis can become more nuanced with purely pre-custodial, pre-advisement silence in situations where no questioning by a person subject to the code has triggered the advisement requirement. Even there, however, the safe and well-supported understanding for service members is that the assertion of the right to remain silent is protected, and the prosecution should not be permitted to convert that silence into evidence of guilt. Because the boundaries of these scenarios are fact-specific, any attempt by the government to introduce or comment on an accused’s silence should be scrutinized carefully and challenged.
Improper Comment and the Available Remedies
When the prosecution crosses the line and comments on protected silence, the defense has remedies. The most immediate is an objection at trial, followed by a request that the military judge instruct the members to disregard the comment and that no inference may be drawn from the accused’s exercise of the right to silence. Where the comment is serious, the defense may move for a mistrial. On appeal, improper comment on an accused’s silence can constitute error, and depending on its significance and the strength of the remaining evidence, it may warrant relief. The fact that appellate courts treat such comments as error underscores how firmly the protection is established.
Limited and Distinct Uses
It is worth distinguishing the substantive use of silence, which is the prohibited practice, from narrow situations that are conceptually different. For example, evidence about the sequence of events during an investigation may sometimes come in for a non-prohibited purpose unrelated to suggesting guilt from silence. These situations are limited and easily abused, which is why the defense should insist that any reference to the accused’s silence be examined for its true purpose. The default rule remains protective: silence after an Article 31 advisement is not admissible to prove that the accused is guilty.
Practical Guidance for Service Members
The practical lessons are clear. First, exercising the right to remain silent after an Article 31 advisement is a lawful choice, and it should not later be held against the service member as evidence of guilt. Second, if a service member chooses to remain silent, doing so clearly and unambiguously helps ensure the protection applies. Third, if the prosecution nonetheless tries to introduce or comment on that silence at trial, the defense can object, seek a curative instruction, and preserve the issue for appeal. Because the protection is grounded in both Article 31 and the constitutional privilege against self-incrimination, courts have consistently guarded it.
In short, a service member who remains silent after being advised of Article 31 rights is exercising a fundamental protection. That silence is generally not admissible to show guilt, and improper attempts to use it can be challenged at trial and on appeal. Service members who anticipate questioning should understand both the strength of this protection and the importance of asserting the right clearly and then consulting counsel before saying anything further.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.