Few military investigations ever were improved by the servicemember giving a statement to law enforcement without the benefit of counsel. The only statement that can be helpful is a denial of wrong-doing but only when the details are not false. Seldom does a servicemember leave an interrogation not having made some form of admission or in the least a statement that was internally inconsistent or independently could be contradicted by other investigative efforts.
The single most damaging component of a military law enforcement file is any statement that is or could be construed to be a confession. Interrogators rely on childhood notions of the police being the friend to all, ever poised to help the community. By cloaking themselves in thematic speeches of not being able to help the suspect unless the suspect “comes clean,” and creating an image that the law enforcement agent is both all knowing and all powerful to effectuate help to the suspect (if the suspect admits wrongdoing) and at least implying leniency, suspects tend to admit wrongdoing, even when there may be a defense or mitigation. Agents of military law enforcement effectuate statements by relying on lessons learned from an early age that police are present to help all citizens. From an early age, a parent teaches her children that in the event they get lost, that the only safe strangers are police officers or firefighters. For the suspect of an offense, police are seldom acting to help.
When law enforcement seeks a confession, agents will often use themes that spark reflection of teachings about character that are grounded for many in Biblical origins. Parents teach their children that character is built on accepting responsibility when one makes a mistake. Concepts of redemption are enforced by church teachings that confession of one’s wrongs is paramount to salvation and necessary to escape the perpetual fires of hell. Cultural norms often play a role in encouraging respect for one’s elders and not to question authority. Law enforcement agents pray (pun intended) upon a suspect’s tendency to believe in redemption and leniency from confession and trust the implications of an agent’s authority to at least improve their situation by admitting wrongdoing. Often the agent will either expressly or by implication reference the suspect’s commander but always reminding the suspect that the walls of the interview room will not forever permit him to avoid the consequences of his actions. An agent can use the commander to remind the suspect of his powerlessness or to imply that the agent has great weight over the all-imposing commander to influence him to take a more favorable action if he, the agent, can only report to the commander that the suspect has admitted wrongdoing and therefore is accepting responsibility.
The decision to not “cooperate” with law enforcement by refusing to speak to or answer any questions runs afoul of cultural, religious, and societal norms. A suspect worries that if he does not answer questions, his command will assume he has something to hide and must be guilty. Though many commanders and senior enlisted will presume guilt for the suspect that invokes his rights, the statement itself without assistance by counsel is far more damaging. Agents also expressly use the tactic by stating at the outset he wants to speak with the suspect so that the suspect can “clear things up” to imply waiving one’s rights and making a statement will allow the suspect to avoid further investigation and permit him to return to normal.
No matter how many times or in how many varied ways, when a law enforcement agent tells a suspect that he is neutral and only there to gather the facts, does not make it true. By the time law enforcement is attempting to interrogate a suspect, that agent is convinced the suspect is guilty. Their entire goal in approaching the suspect for information is to find additional incriminating information.
In the last thirteen years that I have been handling military justice cases, I have come to realize that most of the training that military law enforcement agents receive focuses on interrogation techniques. Perhaps the mindset is that if the suspect confesses, little other investigative efforts are required. They seem to triage time and resources into interrogation and little else of substantive investigative work. Why then would the information a suspect provides an agent assist the agent in exonerating the suspect? The short answer is it does not.
Does a military suspect have knowledge that can assist him in his defense? Yes. Does that mean that sharing the information (unfiltered) to the military law enforcement agent is in the suspect’s best interest? In nearly all circumstance, absolutely not.
Each of the aforementioned reasons that servicemembers feel it appropriate to waive their Article 31 rights and provide incriminating information does little to assist them later when they are facing the consequences of their actions and subsequent admissions. Confession may be good for the soul, but it sure can be lousy for one’s career.
I do not mean to belittle or demean the strength of any person’s moral or religious convictions involving responsibility, but I must refocus those with such principles to a person to whom the member can confess without compromising the opportunities for their defense. When a member feels compelled to reveal incriminating information about themselves or even information the member feels will help exonerate him, I would direct that member to a religious clergy member of his faith or to an attorney whose duty is one bound by the attorney-client privilege. Confession should be directed to a protected source, not the police.
Confession to the police does not absolve one’s sins. Choosing to assert one’s rights by not waiving them is not lying by omission and does not condemn the person. Opting to remain silent is not an affront to parental lessons and religious teachings to accept responsibility. Confession does foreclose on an attorney’s options in helping a military accused; in fact, it often paints the advocate into a corner, not having all possible strategies available by virtue of the “four-corners” of the statement taken by a partisan source devoid of context or knowledge of legal defenses.
Suppressing a statement is not easy; simply because the statement is damaging to the defense’s case does not itself lend to a grounds to ask the statement to be tossed from the pool of available evidence. Regrettably, the tactics that the police employ skirt the line of what is permissible and rarely do the interrogation techniques themselves render a statement inadmissible.
The most dangerous societal expectation involving admissions made by a suspect is that an innocent person would not confess. Thanks to the efforts of organizations like the Innocence Project, we know that innocent people do confess for myriad reasons. When the interrogator convinces the suspect that there is, for instance, DNA, blood, or other physical evidence “proving” the suspect’s guilt and the suspect comes to believe their situation is hopeless, people confess to lessen the blow of the consequences.
The strain and stress of a lengthy military law enforcement investigation is not one to be taken lightly and even the weighty pressures of self-awareness of a suspect’s reflection of misconduct lead suspects to want to confess, to get the information “off their chest.” Wanting to unburden one’s conscience is a valid emotion, but unburdening oneself to military law enforcement will only make a difficult situation even worse.
A military suspect gains very little by waiving his rights to confess and stands to lose everything in doing so. In a recent court-martial, I had to dig my client out of a very deep proverbial hole he created by speaking with law enforcement. He stated in a videotaped “confession” that he had “forced himself on her, forced himself between her legs”, that he had “lost control”, that he had “ignored her when she said no.” In short, it was about as bad a statement as I have ever had to handle. In the end, he was acquitted of attempted rape and aggravated sexual contact. But the amount of time I had to devote to explaining and defending his statement was better spent in other areas of his case. He is quite fortunate not to be a registered sex offender. Whatever momentary relief he gained from speaking to the police was lost over the past 17 months he spent pending the allegation and a general court-martial.
So please, for the sake of your liberty and your career, save your confession for church, and keep quiet until you find qualified counsel.