The type of questions that require a prior Article 31 advisement are any questions that are reasonably likely to elicit an incriminating response from a service member who is suspected of an offense. The focus is on the interrogative nature of the question and its potential to make the suspect incriminate themselves.
This is a broad category that goes beyond direct questions like “Did you do it?” It includes any questioning that seeks to establish facts or details about the suspected offense. For example, asking a suspect “Where were you on Tuesday night?” or “Can you explain why your fingerprints are on this item?” are questions designed to elicit information related to a criminal investigation and therefore require a prior rights warning.
The protection is not limited to verbal questions. Any action by an investigator designed to produce a response, such as showing a suspect incriminating evidence and waiting for their reaction, can be considered the “functional equivalent” of interrogation. The key is whether the official’s conduct is calculated to draw out an incriminating statement or non-verbal assertion from the suspect.
However, questions that are purely administrative and not related to the investigation do not require a warning. For instance, asking for a suspect’s name and rank is considered routine booking information. Similarly, a general question posed to a large group of service members, before suspicion has focused on any one individual, would not trigger Article 31. But once suspicion rests on a person, any incriminating inquiry demands a rights advisement.