If I’m Innocent, Why Should I Remain Silent?

As an attorney who regularly represents servicemembers, the simplest but most critical piece of advice I offer to military personnel is often the one most commonly ignored: to remain silent. It is one of the most basic constitutional rights afforded to us, so why do members of the armed services, those charged with upholding the Constitution, have such a hard time exercising this right?

Because from day one of training, we who serve are taught to do what we’re told. “Good” Soldiers, Sailors, Airmen, and Marines should always answer questions put to them, right? Wrong.

If you are suspected of committing an offense under the Uniform Code of Military Justice (UCMJ), you must exercise your right to remain silent. It will never help you to make statement. Yes, your superiors and interrogators will imply that you are guilty. Yes, you will hear things like “if you didn’t do it, just tell us the truth about what happened.” It goes against everything you are taught about obeying orders and doing what you are told. You must fight that instinct. Under Article 31(b) of the UCMJ, you have an absolute right to remain silent.
But if you know you didn’t do anything, why not say so? Because you do not know the law. Moreover, your superiors and interrogators do not necessarily know the law. For example, one of the most commonly charged offenses in the military justice system is sexual assault under Article 120 of the UCMJ. This one offense occupies 17 pages of the Manual for Courts-Martial (MCM) … 17 pages of legal definitions and different versions of sexual assault. As a trained lawyer who has defended many Marines charged with sexual assault, even I open up the MCM to Article 120 and review the specific elements and definitions. Every time. The law has more gray area than you can navigate with a well thought-out explanation of what happened. If you say nothing, nothing can be used against you. More importantly, your silence cannot be used against you.
Even a simple response like “it never happened” can get you into trouble. Under Article 107 of the UCMJ, you can be charged with making a false official statement for simply denying that anything happened.
So, if you find yourself suspected of committing an offense, the right answer every time, in a respectful tone, is “I respectfully desire to remain silent”. And then, give me a call.