Invoking the right to counsel or the right to remain silent under Article 31 is only the beginning. What happens in the moments and hours after that invocation is where cases are frequently won or lost. Service members who assert their rights and then continue to engage with investigators, whether out of nervousness, a desire to appear cooperative, or a belief that they can explain their way out of trouble, often provide statements that are used against them despite the earlier invocation.
Courts analyze these situations carefully, looking at whether the invocation was clear, whether investigators immediately ceased questioning, and whether any subsequent statements were truly voluntary. The analysis is fact-specific and unforgiving. A defense attorney attacking the admissibility of a post-invocation statement must overcome the presumption that the accused waived their rights when they kept talking. Avoiding that fight entirely requires understanding exactly what silence means and maintaining it.
What a Valid Article 31 Invocation Looks Like
To trigger the protections that follow a valid invocation, the service member must make a clear and unambiguous assertion of rights. Courts have held that ambiguous or hedged statements do not constitute an effective invocation. Saying “I’m not sure I should be talking about this” or “maybe I should get a lawyer” has been treated as insufficient in documented cases. The assertion must be direct: a statement that the service member is invoking their right to remain silent, their right to counsel, or both.
Once a valid invocation is made, questioning must stop immediately. Investigators are not permitted to continue in the hope that the subject will change their mind, ask clarifying questions about the invocation, or attempt to minimize what the service member said. Any question asked after a valid invocation, and any statement obtained in response to continued questioning, is presumptively the product of an unlawful interrogation. The burden then falls on the government to demonstrate that the subsequent statement was made voluntarily and constituted a knowing waiver of the previously invoked rights.
The Waiver Problem and How Courts Analyze It
When a service member invokes Article 31 rights and then continues to talk, courts analyze whether the continued statements constituted a voluntary, knowing, and intelligent waiver of the previously invoked rights. The burden of establishing waiver falls on the government, but it is a burden that prosecutors frequently meet when the accused kept talking after a clear invocation. Courts look at how much time passed between the invocation and the continued statement, whether investigators said or did anything after the invocation, whether the accused spontaneously resumed talking or was prompted, and whether the totality of the circumstances reflects a deliberate decision to abandon the earlier invocation.
The waiver analysis is highly fact-specific and often unfavorable to the accused who kept talking. A service member who invokes rights and then, minutes later, begins explaining themselves has given the government significant leverage to argue that the invocation was abandoned. The only reliable way to prevent this outcome is to stop speaking entirely and mean it.
Spontaneous Statements and Why They Are Treated Differently
Statements that are truly spontaneous, meaning they were not in response to any question or action by investigators after a valid invocation, are treated differently from statements elicited through continued questioning. An accused who invokes rights, sits in silence, and then volunteers a statement has arguably made a new decision to speak that was not prompted by investigator conduct. Courts have admitted spontaneous statements made after invocations in cases where the government could show that no interrogation occurred between the invocation and the statement.
The line between a spontaneous statement and one that was elicited through continued investigator conduct is not always clear. Investigators who remain in the room after an invocation, who make statements about what the evidence shows or what cooperation might mean for the outcome, or who engage in any behavior designed to encourage the accused to speak again may have crossed the line into unlawful interrogation. Whether they did so in a specific case is a factual question that defense counsel must examine closely.
How Courts Have Ruled When Soldiers Continued Talking After Invoking
Military appellate courts have addressed the post-invocation waiver question in a range of factual contexts. Cases where the accused kept talking after an invocation have generally gone against suppression when the government could show that no interrogation occurred after the invocation and that the accused voluntarily resumed speaking. Cases where investigators asked additional questions, made representations about the value of cooperation, or otherwise prompted resumed discussion after an invocation have more frequently resulted in suppression.
The body of case law in this area reflects a consistent principle: the invocation must be honored, and the government bears the burden of showing that any subsequent statement was the product of a free and voluntary choice by the accused rather than the product of continued investigator conduct. Defense counsel researching this area of law will find cases that are favorable and cases that are not, and the specific facts of any given encounter determine which line of authority applies.
How a Defense Attorney Attacks the Admissibility of Your Statement
The suppression motion targeting a post-invocation statement begins with a detailed factual reconstruction of the encounter. Counsel must establish the exact words used in the invocation, what happened immediately afterward, whether investigators ceased questioning or continued in any form, how much time passed, and what triggered the accused’s resumed statements. That reconstruction is built from the client’s account, any recordings that exist, the written reports investigators prepared, and any other documentation of the interrogation.
The legal argument that follows connects those facts to the applicable standard and explains why the government cannot meet its burden of showing voluntary waiver. If the argument succeeds and the statement is suppressed, the government must try its case without whatever the accused said. In many cases, that statement was the most damaging evidence in the file, and its suppression changes the realistic outcome of the entire proceeding.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.