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YOUR RIGHts in the u.s.
military!
when being investigated or
searched
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This page is primarily for service-members on active duty, in the Reserve,
in the National Guard, and their families. This page is primarily about
that service-members rights under the Uniform Code of Military Justice and if
being disciplined or prosecuted in a military forum.
| THERE IS AN IMPORTANT NEW SUPREME COURT CASE AFFECTING
SITUATIONS OF THIRD PARTY CONSENTS TO SEARCH. |
The rights are the same whether or not you are using a military lawyer
and/or a civilian lawyer.
| "The protections of the Fourth Amendment are clear.
The right to protection from unlawful searches is an indivisible American
value. Two hundred years of court decisions have helped bolster this
fundamental right. The state's interest in crime-fighting should never
vitiate the citizens' Bill of Rights." — John Ashcroft, Chairman of the
Senate Commerce Committee on Consumer Affairs, Foreign Commerce and
Tourism, 1997. |
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Police Experiences with Recording Custodial Interrogations: Military
law enforcement will not tape (audio or video) suspect interviews.
They allege various reasons why it's not good for getting confessions.
The research contradicts that "theory." In fact, taping has proven to
be an exceptionally good law enforcement tool, add efficiency to the
judicial system (less motions to suppress), and lead to quicker "pleas."
What the investigators are really afraid of is exposure of their methods? |
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You have the right.
 To be told what criminal act you are suspected or accused
of doing.
To be told that you have the right to remain silent.
To be told that any statements you do make (oral or written) could be used against you.
That's Article 31, UCMJ, plain and simple.
Note ~ you should not talk to the investigators without first talking with
an attorney.
Say: "I do not waive my right to silence; I want to stop this interview; I want to talk to a lawyer; I want to
leave." They will try to get
you to stay and engage in "chit-chat" or "background information." Say:
"I do not waive my right to silence; I want to stop this interview; I want to talk to a lawyer; I want to
leave." |
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DO NOT MAKE ANY STATEMENT (oral or written)!
If you say anything at all it could be used against you. It
doesn't matter if you "only say" something and then decline to put it in
writing or sign the investigators written statement. What you say can
be used.
If you say anything to a
friend, supervisor, or other non-law enforcement person, that statement
might be used against you. This area of military law can be
confusing so the best course of action is to say and do nothing to anyone
but your attorney. Read
United States v. Guyton-Bhatt, 56 M.J. 484 (C.A.A.F. 2002).
Note ~ Investigators are not
your friend. They are there to get you to convict yourself or lead them
to evidence that will help convict you. They have been trained on how to appear to be your friend and in other psychological techniques.
Because people are becoming more aware of investigative techniques, some
investigators will now testify in court that they haven't been trained in
interrogation techniques -- that they learned it all "OJT."
For more on interrogations read the book, Inbau, Reid & Buckley, Criminal Interrogations & Confessions, 4th ed.,
2000. While downplaying the likelihood, the authors themselves now
agree that there are situations where forced and/or false confessions occur.
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| If you are in
custody, or in a situation where you are not free to leave, then you have
the additional right to speak with an attorney.
This is because of the military version of your
Miranda rights which are set out in a Court of Military Appeals case
called United States v. Tempia, 37 C.M.R. 249 (C.M.A. 1967).
Say: "I want to stop this interview."
Say: "I want to talk to a lawyer." Say: "I want to
leave." |
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DO NOT MAKE ANY STATEMENT AT ALl!
If, despite the
advice above you do decide to talk, understand that the law does not give you
the right to
lie. If you do make a statement which is false it is possible you
will be prosecuted for either a false official statement, false swearing,
or obstruction of justice. |
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| MORE ABOUT
INTERROGATIONS, COERCED CONFESSIONS, AND FALSE CONFESSIONS. |
| You might also read,
Slobogin, Christopher, Deceit, Pretext, and Trickery: Investigative Lies By
the Police, 76 OREGON L. REV. 775 (No. 4 Winter 1997). |
| Just last year Army intelligence
officials offered how-to on prisoner interrogations to the Associated Press
(December 21, 2001). "A modern interrogation is psychology and head
games, an effort to make an enemy prisoner volunteer what he knows.
Sometimes a simple offer of cigarettes to a deprived chain smoker will do
the trick, say Army experts. Or play on prisoners' patriotism, or fears, or
despair - whatever it takes to establish rapport and get them talking." |
| For more on interrogations and
the controversial subject of forced or coerced confessions you might read
the following articles. Officer
accuses NCIS of 'unethical' methods.
A Lesson for Va. Justice. Washington
Post Editorial.
Confessions Are Not Always Truthful?
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when the command or law enforcement wants to
search, You have the right.
To refuse to consent to the search. Although recently
the U.S. Supreme Court has held that you have no right to be
informed of the right to refuse a search. See
United States v.
Drayton, (2002)(Held:The Fourth Amendment does not
require police officers to advise bus passengers of their right not to
cooperate and to refuse consent to search.).
do not consent to a search, make
them get a warrant or command search authorization.
To see
any warrant or command authorization permitting a search.
To STOP
the search even though it has begun, if that search is based only on your
consent. But . . . . . . .
Pop-Quiz. If you
are at work, your wife is at the store, and law enforcement asks her to
consent to a search of your house, and she says yes -- is that valid.
Yes, this is what I call the principle of communal ownership? A person
with "common authority over the premises" may
consent to a
search. United States v. Matlock, 415 U.S. 164 (1974);
United States v. White, 40 MJ 257, 258 (CMA 1994). Similarly, a
person who "exercises control over" property "may grant
consent to search." Mil.R.Evid. 314(e)(2).
Question. If you are at
home, your wife is at the store, and law enforcement asks her to consent to
a search of your house, and she says yes, and they arrive at your house and
you say no-way! But they search anyway -- is that valid? You'd
think the answer ought to be no. If a voluntary consent is valid, but
you can revoke consent at any time, it would seem to make sense that the
person actually at the property to be searched can revoke the search.
However, read United States v. Garcia, 57 M.J. 716 (N-M.C.Ct.
Crim. App. 2002), apparently they can't revoke. It seems that once
given by the absent co-tenant, only the absent co-tenant can revoke?
NOTE ----- THE SUPREME COURT HAS ISSUED AN
OPINION IN MARCH 2006, THAT COULD SUBSTANTIALLY AFFECT THIS ISSUE, POSSIBLY
IN YOUR FAVOR. In Georgia v. Randolph, 547 U.S. ___ , 126 S.Ct.
1515 (2006), the U.S. Supreme Court reviewed an issue of "third party
consent." In Randolph, the court held a "co-tenant's" consent
invalid, where the "accused" was present and objecting to a search.
While not exactly on point, it would seem that Randolph gives a solid
foundation to find Garcia wrong.
Another situation where it is possible to misunderstand your rights.
Let's say that you're on active duty, have submitted your EPSQ for a
security clearance, and you have
some current or past misconduct in your life, and now the security
investigator is knocking at the door? What are your rights under UCMJ
art. 31, 10 U.S. Code § 831, when being
"investigated?" Not what you think perhaps -- read
United States v. Payne, 47 M.J. 37 (C.A.A.F. 1997).
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