Military Lawyers

Yes. A written sworn statement can be suppressed if the questioner was required to give Article 31 warnings and failed to do so before obtaining the statement. This is one of the most consequential protections in military justice, and it applies to the kind of written, signed, and sworn statement that service members are routinely asked to provide to investigators and commanders. Understanding when the warning is required, and what happens when it is skipped, is essential for anyone facing a military investigation.

What Article 31 Requires

Article 31(b) of the Uniform Code of Military Justice, codified at 10 U.S.C. 831(b), states that no person subject to the code may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing them of the nature of the accusation, advising them that they do not have to make any statement regarding the offense, and advising them that any statement made may be used as evidence against them in a trial by court-martial. These warnings cover the right to silence, the nature of the suspected offense, and the use of the statement. In practice the warning also includes advice about the right to counsel under Military Rule of Evidence 305.

The remedy for a violation is built into the statute. Article 31(d) provides that no statement obtained from any person in violation of the article, or through coercion, unlawful influence, or unlawful inducement, may be received in evidence against them at a court-martial. A written sworn statement is a statement for this purpose. If the statement was obtained without a required warning, it is treated as involuntary and is subject to exclusion.

The Military Rules of Evidence Make the Remedy Concrete

Military Rule of Evidence 305 codifies the warning requirement and ties it to the suppression remedy in Military Rule of Evidence 304. Under these rules, a statement obtained in violation of the warning requirement is deemed involuntary. Military Rule of Evidence 304 then provides that, upon a timely motion or objection by the defense, an involuntary statement from the accused, and evidence derived from it, is excluded from evidence. The definition of an involuntary statement expressly includes a statement obtained in violation of Article 31.

This framework means suppression is not automatic in the sense of happening on its own. The defense must raise the issue. A timely motion to suppress is required, and …

Yes, the government can offer expert testimony about how people who experience trauma tend to behave, and military courts regularly admit it in Article 120 sexual offense prosecutions. The reason is practical: panel members, like civilian jurors, often hold intuitions about how a “real” victim would act, and those intuitions can be mistaken. Expert testimony is allowed to correct common misconceptions so the panel can evaluate the evidence accurately. That permission is not unlimited, and the same testimony that helps the trier of fact can cross into forbidden territory and trigger reversal.

The governing standard for expert evidence

Expert testimony in a court-martial is governed by Military Rule of Evidence 702. A qualified expert may give opinion testimony if scientific, technical, or other specialized knowledge will help the trier of fact, the testimony rests on sufficient facts or data, it is the product of reliable principles and methods, and the expert has applied those principles reliably to the facts of the case. The military judge acts as a gatekeeper, screening both the qualifications of the witness and the reliability of the methodology before the panel hears it.

In the Article 120 context, the government typically calls a clinician or researcher to explain that sexual assault complainants sometimes delay reporting, do not physically resist, maintain contact with the accused afterward, give fragmented or non-chronological accounts, or show flat affect. The point of the testimony is that these behaviors, which a layperson might read as signs of fabrication, are within the range of documented responses to a traumatic event.

Why this kind of testimony is permitted

Courts allow this evidence because it assists the panel in disabusing itself of widely held but inaccurate beliefs about victim behavior. Testimony framed in general terms, describing patterns observed in populations of trauma survivors, helps the factfinder understand conduct that might otherwise seem counterintuitive. Used this way, the expert is supplying background knowledge, not telling the panel what happened in this case or whether the complainant is being truthful.

The hard limits that the prosecution must respect

The same testimony becomes improper when it shifts from explaining behavior to vouching for the complainant. Military courts strictly forbid so-called human lie detector testimony, meaning any opinion that a particular witness was truthful in a specific statement about a fact at issue. The prohibition rests on three concerns: assessing truthfulness exceeds the proper scope of expertise, it violates …

Text messages are woven into nearly every relationship today, and prosecutions under Article 120 of the Uniform Code of Military Justice, which covers rape, sexual assault, and related offenses, are no exception. Messages exchanged before, during, or after the alleged conduct often become some of the most contested evidence in the case. The short answer is that yes, text messages can be admitted as evidence in an Article 120 court-martial, but only if they clear several requirements under the Military Rules of Evidence. Understanding those requirements is essential for both sides.

Text Messages Are Treated Like Other Digital Evidence

Courts-martial follow the Military Rules of Evidence, which appear in the Manual for Courts-Martial. Text messages are a form of digital or electronically stored information, and they are handled under the same general framework that applies to emails and other electronic records. The fact that a message lives on a phone rather than on paper does not exempt it from the ordinary rules. It must be relevant, it must be authenticated, it must not run afoul of the rule against hearsay or must fit an exception, and it must survive a challenge that its prejudicial effect substantially outweighs its probative value.

Authentication Is the First Hurdle

Before a text message can be admitted, the party offering it must authenticate it. Military Rule of Evidence 901 requires the proponent to produce evidence sufficient to support a finding that the item is what the proponent claims it to be. For a text message, that ordinarily means showing both that the message is an accurate, unaltered copy of what was sent or received and that it was actually sent or received by the person the proponent identifies.

Authentication can be accomplished in several ways. A witness with personal knowledge may testify that the screenshots or extracted records accurately reflect the conversation. Distinctive characteristics of the message, such as the phone number, the contents, references to events only the parties would know, or the style of communication, can support attribution to a particular author. Records obtained directly from a device through a forensic extraction, or from a service provider, can also help establish authenticity. Military Rule of Evidence 902 separately addresses categories of evidence that are self-authenticating and may be admitted without a sponsoring witness, which can be relevant to certified records of electronic communications.

Attribution deserves special attention. Showing that a message came from …

Service members under investigation for a sexual offense under Article 120 of the Uniform Code of Military Justice are sometimes asked whether they will take a polygraph, and many wonder whether passing one could clear them or whether failing one could be used against them. The answer requires separating two different things: how a polygraph might be used during an investigation, and whether the results can ever come into a court-martial. This article addresses both.

The Investigative Stage Versus the Courtroom

A polygraph is an investigative tool, not courtroom evidence. During an Article 120 investigation, military criminal investigators may offer a suspect the chance to take a polygraph examination. Investigators sometimes use the examination, and the interview that surrounds it, as a means of gathering information and assessing a suspect’s account.

The critical point is that whatever happens during a polygraph session is governed by the rules that protect a suspect. A polygraph examination of a service member who is a suspect is an interrogation, which means Article 31 rights and the right to counsel apply. Statements a suspect makes before, during, or after a polygraph, including any admissions made in the post-test interview, can themselves become evidence even though the polygraph chart cannot. This is one reason the decision to submit to an examination is significant and should not be made without legal advice.

Polygraph Results Are Not Admissible at Court-Martial

The central legal rule is Military Rule of Evidence 707. It provides that the results of a polygraph examination, the opinion of a polygraph examiner, and any reference to a person’s offer to take, failure to take, or taking of a polygraph examination are not admissible in a court-martial. The rule operates as a categorical bar rather than a case-by-case reliability assessment.

This means neither side can put polygraph results before the court. A passing result cannot be offered by the defense to show innocence, and a failing result cannot be offered by the government to show guilt. The mere fact that a person offered to take or refused a polygraph is also off limits.

The Supreme Court Upheld the Ban

The constitutionality of this exclusion was settled in United States v. Scheffer, 523 U.S. 303 (1998). In that case an Air Force airman who served as an informant took a polygraph that indicated no deception in his denial of drug use, but a urinalysis later showed methamphetamine. …

Article 31 of the Uniform Code of Military Justice protects people against compelled self-incrimination in the military justice system, but it does not reach everyone who wears a uniform-style program patch. Junior Reserve Officer Training Corps (JROTC) students, who are civilian high schoolers, fall outside the UCMJ entirely. Service academy cadets and midshipmen, by contrast, are subject to the UCMJ and to Article 31. The treatment of young people under Article 31 therefore depends not on age but on whether they are subject to the code at all. This article untangles those categories and explains what each means in practice.

Article 31 Applies Only to Those Subject to the UCMJ

Article 31, codified at 10 U.S.C. 831, governs questioning within the military justice system. Its warning requirement under Article 31(b) is triggered when a person subject to the code, acting in a law enforcement or disciplinary capacity, questions a suspect or accused. The threshold question is therefore jurisdictional: is the person involved subject to the UCMJ? If not, the military justice framework, including Article 31, does not govern the situation.

Who is subject to the code is defined by Article 2, codified at 10 U.S.C. 802. That statute lists the categories of persons subject to military jurisdiction, including members of the regular armed forces and, importantly for this discussion, cadets and midshipmen of the service academies. The analysis of how a young person is treated under Article 31 starts and ends with whether they fit within Article 2.

JROTC Students Are Civilians, Not Subject to the UCMJ

JROTC is a high school elective program. Its mission is citizenship, leadership, character, and community service, and there is no required commitment for JROTC students to join any branch of the armed forces. JROTC students are high schoolers enrolled in a civilian educational program. They are not members of the armed forces and are not listed among the persons subject to the UCMJ under Article 2.

Because JROTC students are not subject to the code, Article 31 does not apply to them as a matter of military jurisdiction. They are not court-martialed, they are not subject to military discipline under the UCMJ, and the Article 31 warning framework is not the legal mechanism that governs questioning of them. If a JROTC student is suspected of an offense, the relevant protections are those of the civilian justice system, which has its own rules for …

Service members questioned about suspected misconduct are protected by Article 31(b) of the Uniform Code of Military Justice. Before anyone subject to the UCMJ interrogates or requests a statement from a suspect, that person must state the nature of the suspected offense, advise the suspect that he or she does not have to make any statement, and warn that any statement made may be used as evidence against the suspect at a court-martial. When that advisement is botched at the start of an interview, a common and pressing question follows: can the investigator simply pause, fix the warning, and keep going while preserving the admissibility of everything that comes next?

The short answer is that a defective advisement can sometimes be cured during a single interview, but only under conditions that genuinely restore the suspect’s informed and voluntary choice. The repair is not automatic, and it does not retroactively rescue statements already obtained before the correct warning was given.

What “improperly advised” usually means

Article 31(b) advisements fail in several recurring ways. The investigator may omit the nature of the accusation, leaving the suspect to talk about a vague “incident” without knowing the real subject of the inquiry. The investigator may misstate the offense, advising the member about one suspected crime while actually probing another. The advisement may be incomplete, skipping the warning that statements can be used at trial, or it may be paired with misleading assurances that minimize the consequences of speaking. Each of these defects can render the resulting statement involuntary under the Military Rules of Evidence.

The significance of the defect matters. An advisement that names the wrong offense is treated differently from one that fully informs the suspect of the right to silence but slightly misdescribes a collateral matter. Courts examine whether the flaw actually deprived the member of the knowing choice that Article 31 is designed to protect.

The legal treatment of a flawed warning

Under Military Rule of Evidence 305, a statement obtained without proper Article 31(b) advisement is treated as involuntary, and involuntary statements are analyzed for admissibility under Military Rule of Evidence 304. Once the defense moves to suppress, the government carries the burden of proving admissibility by a preponderance of the evidence. That means the prosecution, not the accused, must show that any statement it seeks to use was properly obtained or properly cured.

This burden allocation is the practical …

A service member facing serious charges is sometimes placed in pretrial confinement before any preliminary hearing takes place. Pretrial confinement is the physical restraint of a person in a confinement facility before trial. It is one of the most consequential things that can happen early in a military case, and it is governed by its own set of protections under Rule for Courts-Martial 305 and by Article 13 of the Uniform Code of Military Justice. Confinement before a hearing does not mean the accused has lost the rights that attach to the case. It triggers a separate series of reviews designed to test whether the confinement is lawful and necessary.

Confinement requires probable cause and necessity

No one may be ordered into pretrial confinement unless probable cause exists. Probable cause in this setting means a reasonable belief that an offense triable by court-martial has been committed, that the person to be confined committed it, and that confinement is required by the circumstances. The last element matters. It is not enough to suspect that the member committed an offense; the command must also conclude that confinement, rather than a lesser form of restraint, is genuinely needed, for example because the member is a flight risk or is likely to engage in further serious misconduct. This necessity requirement is the legal hinge on which much of the early litigation turns.

The early reviews of confinement

Pretrial confinement is not left unexamined. A neutral and detached officer reviews the decision to confine to confirm that probable cause and the need for confinement exist. Then, within seven days of the imposition of confinement, a neutral and detached officer must review both the probable cause determination and the necessity for continued pretrial confinement. That period can be extended for good cause. At this seven-day review the service member may be represented by counsel and may submit evidence on their own behalf. The reviewing officer must set out conclusions, including factual findings, in a written memorandum. These reviews exist precisely so that confinement does not continue unchecked while the case moves toward a preliminary hearing.

Article 13 and the conditions of confinement

Article 13 prohibits two things before trial: imposing punishment or penalty on the accused for the offense, and subjecting the accused to conditions of confinement that are more rigorous than necessary to ensure the member’s presence. Pretrial confinement is supposed to be custodial, not …

Character evidence is among the most tightly regulated categories of proof in a court-martial, and Article 120 sexual offense cases are where the rules are most contested. When a panel, the military equivalent of a jury, considers character evidence in a way the Military Rules of Evidence forbid, that misuse can become a basis for setting aside the conviction on appeal. Whether it actually leads to reversal depends on the kind of error, whether the defense preserved it, and whether the appellate court concludes the error affected the outcome.

The character-evidence rules that matter in an Article 120 case

The starting point is Military Rule of Evidence 404(a), which generally bars using a person’s character to prove that the person acted in conformity with that character on a particular occasion. There are limited exceptions. Historically an accused could offer evidence of good military character to suggest innocence, the so-called mercy rule. That door was narrowed by Executive Order 13696 in 2015, which amended MRE 404(a) so that general military character is not a pertinent trait for many offenses, including sexual offenses under Article 120. The result is that a panel should not treat an accused’s reputation as a good service member as circumstantial proof he did not commit a charged sexual assault.

On the prosecution side, MRE 413 allows evidence that the accused committed other sexual offenses and permits the panel to consider it for any relevant matter, including propensity. This is a powerful exception, but it is bounded. Military courts have held that the government cannot use a charged offense to prove propensity to commit another charged offense in the same trial, and any 413 evidence must still survive a balancing of probative value against unfair prejudice. MRE 412, the rape shield rule, restricts evidence of an alleged victim’s sexual behavior or predisposition.

What “improper use” by a panel looks like

A panel misuses character evidence when it crosses one of these lines. Examples include treating an accused’s general good-soldier reputation as a defense to an Article 120 charge after the rule was narrowed, using prior-acts evidence admitted for a limited purpose as a general “bad person” inference without the required balancing, drawing a propensity inference from one charged count to another, or considering victim sexual-history evidence that should have been excluded under MRE 412. Often the misuse is set in motion by an erroneous evidentiary ruling or by …

A conviction under the Stolen Valor Act can have consequences that reach well beyond the criminal sentence. Many veterans worry that such a conviction could cost them their Department of Veterans Affairs benefits, and whether that can happen without due process. The honest answer is that VA benefits are not stripped automatically by the conviction itself. They can be affected, most directly through the VA’s fraud-forfeiture rules, but the VA must follow established procedures that provide notice and an opportunity to respond. Those procedures are the due process that applies in this setting. This article explains how the pieces fit together.

What the Stolen Valor Act prohibits

The current Stolen Valor Act of 2013 is codified at 18 U.S.C. § 704. It makes it a federal crime to fraudulently claim, with intent to obtain money, property, or another tangible benefit, that one received certain military decorations or medals. The 2013 law was written narrowly in response to United States v. Alvarez, 567 U.S. 709 (2012), in which the Supreme Court struck down the broader 2005 version as an unconstitutional restriction on speech. By tying the offense to fraud aimed at obtaining a tangible benefit, Congress addressed the constitutional defect. The fraud element is significant here, because fraud connected to veterans benefits is exactly what triggers the VA’s separate forfeiture rules.

How a conviction can reach VA benefits

There is no statute that says a Stolen Valor Act conviction by itself erases all VA benefits. Instead, the relevant exposure comes through the VA’s own fraud provisions. Under federal law and VA regulations governing forfeiture, a person who knowingly makes or causes to be made a false or fraudulent statement or claim concerning a VA benefit forfeits all rights to benefits administered by the VA, with a limited exception for certain insurance benefits. If a fraud forfeiture is declared after a specified statutory date, the regulations also limit payment of benefits to dependents.

The practical link is the conduct, not the criminal label. If a person fraudulently claimed an award in order to obtain VA benefits, that same fraudulent conduct can support a VA forfeiture determination. A Stolen Valor Act conviction premised on seeking VA benefits is strong evidence of such fraud. Where the false valor claim was made to obtain something other than VA benefits, the connection to forfeiture is weaker and depends on whether the VA can establish fraud against …

As more of social and intimate life moves online, questions arise about how older statutes apply to new conduct. Article 120 of the Uniform Code of Military Justice covers rape, sexual assault, aggravated sexual contact, and abusive sexual contact. A reasonable question is whether misconduct that occurs in a virtual setting, or that is simulated rather than physical, can be prosecuted under Article 120. The answer turns on the precise definitions the statute uses, and in most cases the answer is that purely virtual or simulated conduct falls outside Article 120, although it may be reachable under other provisions of military law.

Article 120 Requires Physical Conduct

The offenses in Article 120 are defined in terms of a sexual act or sexual contact, and both of those terms are defined by reference to physical conduct involving the body.

A sexual act refers to physical sexual intercourse or penetration as the statute describes it, involving contact between or with specified parts of the body. Sexual contact is defined as touching, either directly or through the clothing, certain intimate parts of another person, or causing another person to touch such parts, when done with the intent the statute specifies, such as to abuse, humiliate, harass, or degrade, or to arouse or gratify sexual desire. The touching may be accomplished by any part of the body or by an object.

The common thread is physical touching or physical penetration of a real person. Because the statutory definitions are built around bodily contact, conduct that is entirely virtual, meaning it occurs only through screens or messages without any physical touching, does not satisfy the elements of an Article 120 offense. Likewise, conduct that is merely simulated, in the sense that no actual proscribed touching of a real person occurs, generally falls outside the statute. The requirement of an actual sexual act or sexual contact is the dividing line.

Where Virtual or Simulated Conduct May Fit Instead

Saying that Article 120 does not reach purely virtual conduct is not the same as saying such conduct is lawful or beyond the reach of military justice. Congress and the military have other provisions that can apply to misconduct in the digital realm.

A closely related provision is Article 120c, titled other sexual misconduct. Article 120c addresses conduct that is not a sexual assault under Article 120 but that the military nonetheless treats as criminal, including indecent viewing, …