Invoke Your Rights – Do NOT talk to anyone (this includes, chain of command, law enforcement, fellow service members, friends and family) if you are suspected of a crime without the assistance of a lawyer. Your chain of command and law enforcement are required by law to inform you of your Article 31 rights (similar to Miranda rights) before any questioning can begin. Note that your Article 31 rights also include being informed as to the crime of which you are a suspect. Ordinarily, it is enough to orient you to the general nature of the offense and the UCMJ Article or the name of the UCMJ offense (e.g. “sexual assault”). When law enforcement is at the point where they are informing you of your rights, they will typically ask you to fill out a form about your physical description and simple biographical information. In addition to providing them with administrative information, the real purpose of this form is to build rapport with you and make you feel at ease. Some investigators will even lie and say they have a relative that lives near where you grew up as a means to make you feel more comfortable with them. The goal is to get you to open up and to talk to them. Ultimately they want you to waive your rights and confess to a crime. Even if they are not able to get you to confess, they will use tactics that make you feel or seem guilty which results in you talking more to clarify. In addition, they will try to disprove any information you give them in an attempt to make you look untruthful. Statements do not have to be written to be used against you. Verbal statements are just as dangerous as written ones. Therefore, it is in your best interest not to make any type of statement at all. It is always best to consult with and/or have a lawyer present with you if and when you and the attorney decide it is in your best interest to make a statement. Having a lawyer present gives you more control over the interview and lawyers are trained to spot the tricks and tactics law enforcement uses to try and trap you. In most cases, the lawyer will not recommend that you submit to question and answer format of an interrogation, but rather will assist you in putting together a written statement to provide to law enforcement and then informing them to submit and follow up questions to the attorney. Without the help of an attorney, military investigators will do everything they can to make you believe they are your friend and that the best way you can help yourself is to “cooperate” and help them find “the truth.” Make no mistake, they are NOT your friend and they want their investigation to end with your interview.
Do Not Consent – Once you have invoked your rights, investigators are likely to ask you to consent to a search of certain places and/or seizure of potential evidence. This includes searching your home, car, cell phone pictures, text messages and call history. Depending on the crime alleged, they may also request a DNA sample. Do NOT consent to anything. Even if you don’t have anything to hide, do not make their job easier. If they have probable cause, a military magistrate or commander will authorize a search warrant / authorization to obtain these items. Make them obtain a warrant. If they show you the warrant, ask for a copy of the warrant and also ask for a copy of the affidavit upon which the magistrate or commander made the probable cause determination. If you obtain both the affidavit and the authorization, it will allow you to see at least some of the evidence they have against you. Warrants can be very informative. It may allow you and your lawyer(s) to see what evidence investigators have and how strong their case is against you. It is beneficial for you and your lawyers to know what evidence investigators have before the government does. Otherwise, your defense team will not know the exact evidence the government has against you until you are officially charged by your chain of command.
Continue to Remain Silent – After you have invoked your right to remain silent, investigators will not release you immediately. Someone from your chain of command will be called to come and take charge of you. Often times, investigators will stall this process by not calling your command right away in hopes that you will decide to talk. Stay strong and resist the urge to “clear things up.” The most common reason we see for suspects to give statements to the military law enforcement is because the suspected person wants to know more about the allegation and believes they will be able to get information from the investigator – it is not worth the risk. Under the stress of an interrogation, it is common for suspects to leave out important information that the individual does not recognize is important; it is best to let an attorney pull the information out of you and to format any statement in a way that best represents your interest. Investigators will process you into the system. This process includes “mug shots”, fingerprints, and a DNA sample. This particular kind of DNA sample cannot be used for investigative purposes but is used for “titling” purposes. If your DNA is needed for investigative purposes, the investigator will present you with an authorization signed by a magistrate or commander. Do not discuss the investigation or case with anyone in your chain of command in addition to your friends and family. Prosecutors will interview everyone in your life looking for inconsistencies in your story and will want to use what you have said to your friends or family against you. Friends and family are not required to be read their rights before asking questions and they can be called to testify against you. To avoid putting them through that, continue to remain silent.
Do Not Offer to Take a Polygraph – Polygraphs are junk science and are designed not to find the truth, but rather to make you feel as though you should confess because the machine “knows better.” Do not under any circumstances agree to a polygraph examination.
Talk to a Lawyer Immediately – Once you are formally under investigation, you are entitled to speak to a military defense lawyer. These lawyers will give you “suspect rights” which essentially tells you not to make any statements or consent to anything. These lawyers will not start talking to witnesses, investigators, or advocate to the chain of command until after you are formally charged with a crime. It is important to understand that military defense lawyers can be very capable lawyers but are bound by certain rules and regulations that civilian military defense attorneys are not. Given these restrictions, it may be in your best interest to seek the assistance of a civilian defense lawyer. Most civilian defense lawyers offer a free consultation with no obligation to hire. If you chose to hire a civilian defense lawyer, that attorney should conduct a parallel investigation by speaking to witnesses the military law enforcement has already interviewed, should be speaking with potential witnesses that are helpful to your case, and should collect documents and other evidence to start putting together your defense. If appropriate to your individual case, the civilian defense lawyer also may be able to steer the direction of the investigation by trying to persuade your chain of command and possibly avoiding any charges being filed against you.
Follow the Command’s Orders – While under investigation you may receive orders not to talk to certain individuals. This is known as a military protective order. Do NOT break this order for any reason. Doing so will only make this worse for yourself. Breaking these orders will result in additional charges being filed against you and hurt your overall case. In cases where you are suspected of sexual assault, often the complainant will try to get in touch with you by texting you, sending you a message through a third party, or even trying to call you. Resist the temptation to speak with the complainant. Instead, document when the complainant tries to get in touch with you. By you continuing to not contact them, the complainant may be inclined to a specific message and that may help your case. Your civilian defense lawyer can contact individuals that you have been ordered not to contact (except the complainant). Therefore, if you feel you MUST make contact, do it through your lawyer.
Do Not Practice “Self Help” – Maybe you are someone that prides yourself in always leaning forward, by preparing, and by not waiting for things to happen to you. Being under military investigation may be one of the hardest times in your life, not only because you are being accused of wrongdoing, but also because you are being made to feel like you should “do nothing.” To you it just feels wrong. The worst thing you can do for your case is to run around on your own trying to talk to potential witnesses or to try to find out on your own what is the status of your investigation or what evidence they have against you. I call this “self-help.” Practicing “self-help” can make your situation worse. You could even find yourself being put into pretrial confinement (jail pending prosecution) or being charged with obstructing justice. Avoid “self-help.” If you want to lean forward and prepare for what may be coming, seriously consider hiring a civilian defense counsel who will use your retainer to conduct a parallel investigation and to advocate on your behalf.
Stay Out of Trouble – While you are pending investigation, all eyes will be watching you even more closely than normal. Though there is a tendency to have your attitude toward your command and your work go down, resist the temptation to act disgruntled. Remember that if you have any chance at having your case not go forward, it is in your best interest to show to your supervisors that you will not be the criminal they suspect you are. Do not get into more trouble by failing to follow the orders of your command. See above.
Take Care of Yourself – A military law enforcement and even command investigations can drag on for months and even longer than a year. I often tell my clients, the process is a marathon and not a sprint. But you are a critical part of your defense team and can be your attorney’s best asset so make sure that you are taking care of yourself. Go to the gym, do PT, eat right and try to sleep. If you are feeling the strain in a way that makes it too hard, ask for help. Your attorney can guide you to the best resources that will not compromise your defense.
Follow the Advice of your Private Attorney & Help your Attorney – If you hire outside counsel to help guide you through the investigation process, then make sure you listen to your attorney’s advice about not practicing “self-help,” handing over phone numbers for potential witnesses, and collecting records that the attorney asks you for such as phone records, historical messages, etc. Be responsive, and don’t fall into the tendency to ignore your lawyer because you are in denial of this new stage in your life. The investigation is not going away so make sure that you are continuing to take steps to best prepare for what is coming.