For the military member facing investigation, being made to sit back and wait can be frustrating and even vacillate to causing feelings of helplessness and hopelessness. While you consider your options in potentially hiring a civilian attorney and in selecting the right civilian counsel, you must not share case details with friends, family, co-workers, supervisors, or law enforcement. Remain silent.
[For some tips on selecting a potential civilian counsel to hire, take a look at this blog or watch this video.]
While you are vetting attorneys by reading their reviews and scheduling consultations, below are some first steps you should take to ensure you are best assisting your to-be-hired attorney:
If you know generally what the allegation is or at least suspect what the allegation may be, record what you recall of the events surrounding the situation. What you use to record the events is not as important as safeguarding and protecting your record from any potential outside eyes or ears. If you still have a computer (and it was not seized in the investigation), consider typing out the information, which will be easiest for your attorney to read and understand. Save the file as “FOR MY LAWYER ONLY.” Please note that nothing in this article should be construed as a subtle hint or overt direction to hide evidence of a crime you have already committed. For instance, placing images of child exploitation into a folder called “FOR MY LAWYER ONLY” is not helpful.
If your case surrounds an allegation of sexual assault and you had interactions with the complainant before the alleged assault and after, you will need to include as much detail as you can about the nature of that contact, i.e., she called me the next day and asked when we would be going out again, or she texted me three days asking why I took advantage of her. Please note the second of those contacts was likely a pretext directed by law enforcement, and any response you gave can be used against you. If you are being investigated for a sexual assault, you should include the details of what you did the day of the incident, the night of the incident, and the day after. Include a list of people who were present with you, may have seen your interactions, or saw the post-incident contact. Be sure to include any and all interactions with the complainant. No detail is insignificant. Include as much information as possible about alcohol consumed by you and by the complainant, including who made the purchase, how the purchase was made, the kind of alcohol, if you know it, the alcohol by volume of the drink, and any receipts you have in your possession or access to bank records. Note: Do NOT call the bar or club to get the itemized receipt on your own behalf. Your attorney will do this for you pursuant to a power of attorney. Don’t hold back any interactions that you worry may not have been favorable to avoid any surprises later. When you are explaining what happened, if you mention another person, be sure to list out in this document any contact information you have for them in brackets after the first time you list their name.
Create an Excel document entitled “FOR MY LAWYER ONLY – POTENTIAL WITNESSES” that lists the names of potential witnesses for interview – this should include people who are called fact witnesses who have relevant information about the allegation itself though not necessarily were present for the intimate contact; they may have observed your interactions with the complainant or saw either or both of you before and after the interaction, in addition to “character witnesses” who are people who know you well and can attest to your character (for truthfulness, peacefulness, and respectfulness toward women). Be sure to list the following categories in the Excel spreadsheet – Name, Unit of Assignment (if known), Duty Location / Place of Residence, Email address (civilian and military, if known), Phone numbers (work and cell, if known), and a brief synopsis of who the person is, e.g. “Was my PSG during deployment to Afghanistan from 2012-2013” or “Saw us out on the night in question at bar #3, called “Willy’s”). DO NOT CONTACT THESE POTENTIAL WITNESSES YOURSELF to make sure they are willing. Your attorney can orient the people to the need for their information or support. You put yourself at risk for people feeling like by you calling you are asking them to have a certain recall of events or want them to say certain information, which can leave you in jeopardy for later claims of obstructing justice. The other reason you do not want to call potential witnesses is that inevitably the person will ask what really happened and their later recall about what you told them could leave you vulnerable to poor recollection and perception of inconsistent statements. Also, a person may tell you that they are willing to support you but maybe they don’t feel comfortable doing so, and it is not beneficial to have secured a list of people who are not really inclined to help you. For myriad of reasons, it is best and safest to leave their contacts to your attorney.
In a sexual assault allegation or in any case where the credibility of the government’s case rests on one person, create a Word document entitled “SOCIAL MEDIA FOR MY LAWYER ONLY” that captures in one place all of the social media account usernames and publicly available photographs that you can find for the complainant. Please note that even if you have a no contact order with a complainant or particular witness (which is likely if not certain), this does not stop you from conducting research ON the complainant that does not make contact WITH the complainant. You can get on Facebook and find a profile – when you find it, make a note on this Word doc of what is the profile name. One thing to note is that when you look around on a person’s page and you are logged into your own account, Facebook’s new algorithm tends to later suggest to the person that you two connect on Facebook – you know that list of “suggested friends” – so consider that when thinking about how long you dig around – The attorney can dig around longer within a given profile but it helps if you can find the account. Facebook is an easy one – if you can find other profiles on dating sites, that is also helpful, e.g. Plenty of Fish, Tinder, etc. Just do NOT make contact with the complainant or send ANY communications. In addition to recording on the spreadsheet the usernames, add the date that the profile was online and active, and if possible take a screen shot or preserve a record in some way. Often prosecutors or special victim counsel will direct a complainant to lock down the account to avoid public views so it is important to get this information soonest. If any public posts relate to the allegations, be sure to also record to preserve those posts as those have a way of being deleted later. If there are posted “selfies” of the complainant looking particularly happy in the hours or days after your interaction, preserve these images as well.
Above all, remember that you are collecting information, not producing it and not making contact with anyone other than your potential lawyer.
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