Military Lawyers

When investigators fail to advise a service member of the rights guaranteed by Article 31 of the Uniform Code of Military Justice, the defense will want to use that failure for maximum advantage. A frequent hope is that an Article 31 violation can knock out the entire case through a motion to dismiss all charges. The reality is more measured. An Article 31 violation is a powerful tool, but its primary remedy is suppression of evidence, not automatic dismissal. Dismissal can sometimes follow, but only as a downstream consequence when suppression leaves the government without enough evidence to proceed.

The standard remedy is suppression, not dismissal

Article 31(b) requires that a suspect be advised of the nature of the accusation, the right to remain silent, and the fact that any statement may be used at a court-martial before official questioning. When that advisement is not given and was required, the resulting statement is treated as involuntary under the Military Rules of Evidence and is generally inadmissible against the accused.

The mechanism for enforcing this is a motion to suppress, not a motion to dismiss. Under Military Rule of Evidence 305, a statement obtained in violation of Article 31(b) is analyzed for admissibility under Military Rule of Evidence 304, and a motion to suppress a statement must ordinarily be raised before plea. Once the defense files the motion, the government bears the burden of establishing the admissibility of the statement by a preponderance of the evidence. If the government cannot meet that burden, the remedy is exclusion of the statement from evidence. The charge itself is not extinguished by the violation; the tainted evidence is.

This distinction reflects the purpose of Article 31. The rule protects against compelled self-incrimination by excluding improperly obtained statements. It is an evidentiary protection. It does not declare that a charge is void simply because a statement was taken without a warning.

How suppression can lead to dismissal

Although dismissal is not the direct remedy, it can be the practical outcome. If the suppressed statement was the centerpiece of the prosecution, and the government has little or no admissible evidence left after the suppression ruling, the charges may collapse. In that situation the government may have to withdraw or dismiss charges because it can no longer carry its burden of proof at trial, or the military judge may dismiss for legal insufficiency once the evidence is …

Appeals from sexual offense convictions under Article 120 of the Uniform Code of Military Justice are not limited to factual issues. They can and routinely do include procedural defects, legal errors, and challenges to the sufficiency of the evidence. In fact, the military appellate system is structured so that different courts review different kinds of questions, and a service member appealing an Article 120 conviction may raise factual sufficiency, legal sufficiency, and procedural or legal error, but in different forums and under different standards. Understanding which court reviews what is the key to understanding the scope of an Article 120 appeal.

The Two Levels of Military Appeal

Article 120, codified at 10 U.S.C. 920, defines the military sexual offenses, including rape and sexual assault. A conviction under Article 120 proceeds through the same appellate structure as other serious court-martial convictions. There are two principal appellate levels above the trial court.

The first level is the service Court of Criminal Appeals, such as the Army, Navy-Marine Corps, Air Force, and Coast Guard courts. The second level is the Court of Appeals for the Armed Forces (CAAF), a civilian court that sits above the service courts. Each level has a defined scope of review, and that scope determines what kinds of issues an appellant can raise and how the court will evaluate them.

What the Courts of Criminal Appeals Review

The service Courts of Criminal Appeals have the broadest review authority in the system. Under Article 66 of the UCMJ, these courts review qualifying cases for legal error, for procedural problems, and for factual sufficiency. Factual sufficiency review is the distinctive feature of military appeals: it allows the appellate court to weigh the evidence and decide whether it is convinced of guilt, a power most civilian appellate courts do not have.

That said, the scope of factual sufficiency review was narrowed by amendments effective in 2019. Under the amended Article 66(d), an appellant must specifically request factual sufficiency review and make a threshold showing of a deficiency in proof. When that showing is made, the court applies appropriate deference to the trial court’s findings rather than reviewing the facts entirely fresh. This change is significant for Article 120 cases, which often turn on credibility contests where the defense wants the appellate court to reweigh the evidence.

Crucially, factual sufficiency is only one part of what a service court reviews. The same court …

The investigation of an Article 120 sexual offense under the Uniform Code of Military Justice can move quickly, and a service member may face questioning, evidence collection, and a preliminary hearing before fully understanding what is at stake. A natural concern is what happens if defense counsel is not present at these key moments. The answer depends on which phase is involved, because the right to counsel attaches differently at different stages.

Counsel during interrogation

The most common flashpoint is questioning by investigators. Here, Article 31 of the Uniform Code of Military Justice provides the front-line protection. Before questioning a suspect, the questioner must advise the suspect of the nature of the accusation, of the right to remain silent, and that any statement may be used as evidence in a court-martial. Importantly, military courts have explained that the Article 31 advisement, standing alone, does not include a right to have counsel present during questioning. The right to counsel during interrogation generally arises in the custodial setting: if a service member is in custody and requests a lawyer, questioning must stop until counsel is present.

So if a service member is interrogated without counsel, the consequences turn on the circumstances. If the required Article 31 warnings were not given, or if the statement was coerced, the statement can be suppressed and may not be received in evidence. If the suspect was in custody, requested counsel, and questioning continued anyway, that statement is also vulnerable to suppression. The practical lesson is that a service member who is questioned should invoke the right to remain silent and request counsel, because doing so triggers protections that the mere absence of a lawyer does not automatically provide.

Counsel at the Article 32 preliminary hearing

A different and stronger right applies at the Article 32 preliminary hearing, which is the formal screening step before a general court-martial. The statute expressly provides that the accused has the right to be represented by counsel at the preliminary hearing. This is not a setting where the government may simply proceed without affording the accused representation. If the accused wants counsel at the Article 32 hearing, counsel must be made available, and detailed military defense counsel are provided at no cost.

If a preliminary hearing were conducted in a way that improperly denied the accused the assistance of counsel, that defect would be a serious procedural error that the defense …

Yes, but within limits. At an Article 32 preliminary hearing, the defense generally may confront a testifying witness with that witness’s earlier statements and probe inconsistencies between what the witness said before and what the witness says at the hearing. This is a recognized and valuable defense tool. The catch is that the Article 32 hearing is a focused probable-cause proceeding, not a trial, so the scope of cross-examination is confined to matters relevant to the hearing officer’s limited determinations, and not every witness will appear in person to be questioned. Where a witness does testify, prior inconsistent statements are a legitimate line of inquiry that can expose weaknesses in the government’s case early.

The framework: impeachment by prior inconsistent statement

In courts-martial, the principal rule governing impeachment with a witness’s earlier words is Military Rule of Evidence 613, which addresses a witness’s prior statements. Under that rule a party may confront a witness with a prior statement that is inconsistent with the witness’s current testimony to call the reliability of that testimony into question. The earlier statement need not have been made under oath, and it may be oral or written. An inconsistency is not limited to flatly contradictory answers; it can also arise from a sudden inability to recall, from equivocation, or from a material shift in the account. When a party seeks to prove the inconsistent statement through extrinsic evidence rather than the witness’s own admission, Military Rule of Evidence 613 requires that the witness be given an opportunity to explain or deny the statement and that the opposing party have an opportunity to examine the witness about it.

How this applies at the Article 32 stage

The Article 32 hearing gives the defense the right to cross-examine witnesses who appear, and that right includes confronting a witness with prior inconsistent statements relevant to the hearing officer’s determinations. If an alleged victim or another government witness testifies at the hearing and that testimony differs from an earlier interview, written statement, or report, defense counsel can question the witness about the difference. Doing so serves two purposes at this stage. First, it tests whether the government’s probable-cause showing actually holds up when the witness is examined. Second, and often more important, it preserves the inconsistency on the record, so that the discrepancy is documented early and can be used later if the case proceeds to trial.

A practical …

When several service members are implicated in the same incident but only some face charges under Article 120 of the Uniform Code of Military Justice (10 U.S.C. § 920), the accused who is singled out may wonder whether the charging decision was unfair. One legal theory that addresses unequal charging is selective prosecution. It is a demanding defense to raise, and in the military context it must be framed against both the constitutional standard and the realities of command discretion. This article explains how the argument is built when there are multiple accused.

The constitutional standard

Selective prosecution is rooted in the equal protection guarantee that the Supreme Court has read into the Fifth Amendment’s Due Process Clause. The leading case is United States v. Armstrong, 517 U.S. 456 (1996). Under Armstrong, a prosecutor’s broad discretion in deciding whom to charge is presumed to be exercised in good faith and is not lightly second-guessed. To overcome that presumption, a defendant must show that the charging decision had both a discriminatory effect and a discriminatory purpose. The decision cannot rest on an arbitrary classification such as race, religion, or another constitutionally impermissible ground, and the mere fact that one person was charged while another was not is far from enough.

The two elements are distinct. Discriminatory effect means that similarly situated individuals outside the protected class were not prosecuted for comparable conduct. Discriminatory purpose means that the decision to prosecute was actually motivated by the impermissible ground, not merely that the outcome looks uneven. Both must be shown, which is what makes the defense so difficult.

Why multiple accused matters

A case with several people involved in the same alleged event is, in a sense, the natural setting for a selective prosecution argument because it supplies potential comparators. If two service members engaged in materially similar conduct, and only one was charged, the uncharged member is a starting point for the discriminatory-effect analysis. The defense will try to show that the accused and the uncharged person were genuinely similarly situated, meaning their roles, conduct, evidence against them, and culpability were comparable, and that the only meaningful difference was an impermissible characteristic.

The difficulty is that people involved in the same incident are rarely truly similarly situated. In a sexual offense case, the strength of the evidence, the presence or absence of consent issues, the role each person played, prior history, cooperation …

When a service member gives a statement while intoxicated, a natural question follows: can that statement still be used against them? Under military law, intoxication does not automatically make a statement inadmissible, but it is a significant factor in deciding whether the statement was voluntary. Article 31 of the Uniform Code of Military Justice and the Military Rules of Evidence require that statements be voluntary, and a service member’s level of impairment bears directly on whether their statement was the product of a free and rational choice. This article explains how intoxication fits into that analysis.

Two Separate Questions: Warnings and Voluntariness

It helps to separate two distinct requirements. The first is the warning requirement. Article 31(b), codified at 10 U.S.C. 831(b), requires that a person subject to the code, when questioning a suspect or accused in a law enforcement or disciplinary capacity, advise them of the nature of the accusation, the right to remain silent, and that any statement may be used against them. The second requirement is voluntariness. Article 31(d) provides that no statement obtained through coercion, unlawful influence, or unlawful inducement may be received in evidence. Military Rule of Evidence 304 treats any involuntary statement as inadmissible upon a timely defense objection.

Intoxication primarily affects the second question. A service member can receive flawless Article 31 warnings and still give a statement that is involuntary because their condition prevented a knowing, intelligent, and voluntary choice. Intoxication can also complicate the first question, because a person too impaired to comprehend the warnings may not have made a valid waiver of the right to silence.

The Totality of the Circumstances Standard

Military appellate courts assess voluntariness under a totality of the circumstances standard. The Court of Appeals for the Armed Forces has explained that the inquiry focuses on whether a statement was the product of an essentially free and unconstrained choice by its maker, and that if the accused’s will was overborne and their capacity for self-determination was critically impaired, use of the statement would offend due process. In United States v. Bresnahan, 62 M.J. 137, the court reaffirmed that voluntariness is judged by looking to the totality of the circumstances to determine whether a confession was the product of coercion, unlawful influence, or unlawful inducement.

Intoxication is one of the circumstances the court weighs. It is considered alongside the characteristics of the accused and the details of the …

Unlawful command influence is sometimes called the mortal enemy of military justice. It occurs when a person who carries the mantle of command authority uses or appears to use that authority to improperly affect the outcome of a court-martial. In sexual assault prosecutions under Article 120 of the Uniform Code of Military Justice, the topic draws particular attention because of the intense institutional and political pressure surrounding these cases. This article explains what can happen if unlawful command influence is established after a service member has already been convicted under Article 120.

The Statutory Source of the Prohibition

The prohibition lives in Article 37 of the UCMJ. Article 37 forbids a commanding officer or any other person subject to the Code from censuring, reprimanding, or admonishing a court-martial, its members, the military judge, or counsel concerning the findings or sentence, or the exercise of their functions. It also bars any person from attempting to coerce or, by unauthorized means, influence the action of a court-martial in reaching its findings or sentence.

Unlawful command influence can take two forms. Actual unlawful command influence involves conduct that improperly affects the proceedings in fact. Apparent unlawful command influence focuses on whether an objective, disinterested observer, fully informed of the facts, would harbor a significant doubt about the fairness of the proceeding. The Court of Appeals for the Armed Forces has recognized the apparent form even where the accused cannot show actual prejudice, because the appearance of unfairness erodes public confidence in the military justice system.

Raising the Issue After Conviction

Command influence can surface at trial, but it frequently emerges or is fully developed afterward. After an Article 120 conviction, the matter typically arises in the post-trial process and on appeal.

The accused can present the issue to the convening authority during post-trial submissions and can raise it before the service Court of Criminal Appeals, which reviews qualifying cases. The Court of Appeals for the Armed Forces may then review the question as well. When credible evidence of unlawful command influence is raised, the government bears a significant burden. To preserve a finding or sentence, the government generally must prove beyond a reasonable doubt either that the predicate facts do not exist, that they do not constitute unlawful command influence, or that the unlawful command influence did not affect the proceedings. For apparent unlawful command influence, the government must show beyond a reasonable …

In a court-martial charging a violation of Article 120 of the Uniform Code of Military Justice, both sides may see value in the medical and mental health records of the people involved. The defense may want to explore an accuser’s treatment history. The prosecution may want to introduce records that corroborate an injury or a report. The military justice system places significant restrictions on this kind of evidence, and those restrictions have grown more protective in recent years.

The psychotherapist-patient privilege under MRE 513

The central restriction comes from Military Rule of Evidence 513, which establishes a psychotherapist-patient privilege. Under this rule, a patient can refuse to disclose, and prevent others from disclosing, confidential communications made to a psychotherapist for the purpose of diagnosis or treatment of a mental or emotional condition. The privilege belongs to the patient, which in an Article 120 case frequently means the alleged victim.

This privilege is not absolute, but the avenues around it are narrow. Earlier versions of the rule contained a “constitutionally required” exception that defense counsel often invoked to seek access; Congress and the President have since tightened the framework so that a service member cannot simply assert a general need for the records. To even examine privileged material, the defense must usually make a specific showing and the military judge controls the process closely.

What MRE 513 does and does not cover

A key point established in military appellate law is that the privilege protects confidential communications between the patient and the psychotherapist. It does not automatically shield every page of a medical file. The Court of Appeals for the Armed Forces has explained that diagnoses and treatment records are not, by themselves, uniformly privileged communications under the rule. This distinction matters: the protected core is the patient’s confidential disclosures, not necessarily every administrative or clinical notation in a chart.

That nuance does not open the door wide. Even where material falls outside the strict definition of a privileged communication, other rules and the patient’s privacy interests still apply, and the judge must determine relevance and admissibility before anything reaches the members.

How a record is actually reviewed

When a party seeks privileged or protected records, the military judge typically does not hand them over for a fishing expedition. The standard procedure is for the judge to conduct an in camera review, meaning a private review by the judge alone, only …

An Article 32 preliminary hearing is more than a procedural gate before a general court-martial. Although its formal purpose under Article 32 of the Uniform Code of Military Justice (10 U.S.C. § 832) is narrow, the way the hearing unfolds can quietly reshape how commanders, the wider military community, and sometimes the public understand the strength and fairness of the government’s case. Understanding that influence helps an accused service member and defense counsel use the hearing strategically rather than treating it as a formality.

What the hearing is and what it is not

Since the reforms enacted in the National Defense Authorization Acts for fiscal years 2014 and 2015, which took effect in late 2014, the Article 32 hearing is a probable-cause preliminary hearing, not the broad investigation it once was. The hearing officer evaluates whether there is probable cause to believe an offense was committed and whether the accused committed it, considers whether the convening authority has court-martial jurisdiction, and makes a referral recommendation. The Military Rules of Evidence largely do not apply, and the government may rely on sworn statements, reports, and documents rather than live testimony. Because the scope is limited, the hearing is not the place where guilt or innocence is decided. Yet the impressions it creates can travel far beyond its legal function.

The convening authority is the first audience

The most direct way the hearing shapes perception is through the report the preliminary hearing officer submits to the convening authority. Under the current rules, that report includes the officer’s findings on probable cause, conclusions, a summary of the evidence, and a recommendation on disposition, accompanied by a recording of the proceeding. The convening authority is the commander who decides whether to refer charges, dismiss them, or pursue a lesser forum such as nonjudicial punishment. A hearing officer who finds weak probable cause, identifies credibility problems, or notes legal defects gives the convening authority a documented basis to reconsider. Conversely, a clean probable-cause finding can harden a commander’s resolve to proceed to trial. The report becomes a lens through which command leadership views the case.

How command perception forms and why it matters

Commanders rarely sit through the entire hearing, so they form impressions from the report, from staff judge advocate advice, and from informal accounts that circulate within the unit. If defense counsel surfaces inconsistencies in the accusation, exposes gaps in the government’s evidence, …

Article 31 of the Uniform Code of Military Justice governs how the military obtains statements from suspects, requiring that a service member be advised of the nature of the accusation, the right to remain silent, and the warning that any statement may be used at a court-martial. Because military and civilian justice systems often overlap, service members and their families frequently ask whether a statement given under an Article 31 advisement can later be used in a civilian court, such as a state criminal prosecution or a federal district court case. The answer depends on how the statement was obtained and what conditions, if any, were attached to it.

A properly obtained, voluntary statement is generally usable

If a service member was properly advised under Article 31, understood the warning, and chose to speak voluntarily, the resulting statement is ordinarily admissible. A voluntary statement does not become inadmissible merely because it was taken in a military setting. The Article 31 advisement, far from making a statement secret or protected, expressly warns the member that what is said can be used as evidence. A statement given knowingly and voluntarily after that warning is the opposite of a compelled statement.

When such a statement is offered in a civilian court, the civilian forum applies its own rules of evidence and constitutional standards. The central question in any criminal forum is voluntariness. A statement that was the product of the member’s free and informed choice, taken after a proper rights advisement, generally satisfies the voluntariness requirement that civilian courts also impose. The fact that the warning came in the form of an Article 31 advisement rather than a civilian Miranda warning does not make the statement unusable, because the Article 31 advisement provides at least the same core protections, telling the suspect of the right to remain silent and that statements can be used as evidence.

The critical distinction: compelled versus voluntary statements

The analysis changes sharply when the statement was compelled rather than voluntary. The military, like civilian authorities, can require a person to make a statement under a grant of immunity. When a service member is ordered to testify or provide a statement under a grant of testimonial or use immunity, that statement is compelled. Compelled statements carry strong protection against later use.

Under the immunity framework recognized in federal law, a grant of use immunity bars the use of the …