Do Members of the Military Have the Same Rights as Civilians?

If you or a loved one serve in the military, it’s important to understand that servicemembers don’t have the same rights as civilians.

While members of the armed forces have specific rights and legal protections, they are often quite different than those guaranteed under the U.S. Constitution and Bill of Rights. In certain respects, the military justice system would violate a person’s constitutional rights if the individual was a civilian. However, members of the military are treated differently under military law.  

In some cases, the legal rights of servicemembers are narrower than those enjoyed by civilians. In other cases, however, members of the armed forces actually have broader protection under military law.

Additionally, the military has a separate criminal court system, and members of the armed forces are subject to prosecution under the Uniform Code of Military Justice. If a member of the military is charged with a crime, they can face prosecution by military lawyers — a process known as a court-martial. If a member of the military is convicted of a crime, they can typically expect to serve time in a military prison.  

Protection Against Search and Seizure

Civilians enjoy broad protections against unreasonable searches and seizures. The Fourth Amendment grants extensive privacy rights, and police generally need a warrant supported by probable cause before they can conduct a search of a person or their property.

However, members of the military aren’t entitled to the same privacy rights as their civilian counterparts. First, the military reserves the right to search any vehicle or person entering a military installation or base. The reason for this is understandable, considering the national security concerns that revolve around military properties.

Additionally, military members who live in base housing, such as barracks, can be subject to a search or inspection at any point. On the other hand, commanding officers and higher ranking supervisors can’t use inspections as a means to search around for evidence of a crime, even if they believe someone has engaged in criminal conduct.

However, military workplaces, such as an office, are open to searches at any time, and the individual conducting the search doesn’t need the servicemember’s permission or knowledge before searching their workspace, computer or desk.

The military police can also enter a servicemember’s barracks or quarters to apprehend them, and they don’t need a warrant to do so.

This is a major difference from civilian life, where the police typically can’t arrest someone without a warrant supported by probable cause — with certain exceptions, such as a search pursuant to police seeing evidence in plain view, or an arrest without a warrant when police are chasing a fleeing suspect in hot pursuit.

However, military police still require a warrant before they can arrest a civilian who lives in on-base housing, such as a rental home.

The Right Against Self Incrimination

In the civilian world, most people are familiar with a person’s right to remain silent when they are in police custody or have been arrested. It’s one of the first rights police recite when they inform a criminal suspect of their Miranda rights.

In the military, servicemembers actually enjoy broader protections than civilians when it comes to the right against self-incrimination. For civilians, police are only required to inform people of this right when the person is in custody or has been arrested.

In the military, however, the authorities must inform a servicemember of their right to remain silent any time they believe the servicemember could incriminate himself or herself. This is one of the rights guaranteed under Article 31 of the Uniform Code of Military Justice.

The Right to a Lawyer   

Additionally, members of the military have the same right to counsel as civilians. However, as with the right against self-incrimination, the military must inform servicemembers of their right to a lawyer any time the servicemember is in a position where they might incriminate themselves. The right to counsel is also protected under Article 31.

As in the civilian world, a member of the military is guaranteed the right to a free defense lawyer if they face a court-martial. However, they can also choose to pay out of pocket for a civilian defense lawyer if they so desire.

One potential advantage to doing so is that servicemembers can keep their free military defense lawyer on the case even if they have chosen to hire a private civilian defense lawyer. In some cases, there may be an advantage to having more than one defense lawyer working on their case.

Criminal defense cases can be time-consuming, and having a team of lawyers may help speed the process along. It’s also worth noting that a civilian defense lawyer isn’t required to adhere to a military chain of command, which may give them more autonomy in the case.  If you or a loved one are in need of a criminal defense lawyer, you should call attorney John Helms today to discuss your case and explain all of your legal options.


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