1. Are you a military member (active, Reserve, Guard, discharged, or retired) who is under investigation, suspicion, or prosecution? Or, do you suspect this is about to happen to you.
2. Are you the spouse of a military member who is under investigation, suspicion, or prosecution?
3. Are you a family member of a military person who is under investigation, suspicion, or prosecution?
What is the Most Common Question if You ask for a Lawyer or ask to Remain Silent?Read on -
On this page you will find helpful information if you answered yes to any of the above. Every cop or lawyer show on TV has something about "Miranda" or "I want my rights!" We hear about rights so often you would imagine people know what they are and that the police would know to "give the rights." Well, TV and movies aren't reality. As a police officer it never ceased to amaze me how many suspects who had been through "the system" multiple times continued to waive their rights.
If you have already been interrogated the first and best thing you can do to help yourself and your military lawyer at this point is to sit down and make a complete and detailed account of what happened. Write down who was there, what was said, and what was done. Be as detailed as possible, memories fade and your notes will be very helpful later on. Do not show this document to anyone except your lawyers. Mark the document, "Attorney-Client/Work Product," to help preserve the confidentiality of the information. Do this now!
If you end up at court-martial an early record of what happened will be very helpful to your military attorney in preparing an effective case.
Here's an interesting development. There has been a lot of media and political attention to a case in Aviano, Italy. As a result, the AF has decided to release a lot of information not normally made public. So, here are some parts of a video of an interrogation of an AF LtCol (O-5) accused. See if you can see some of the techniques and common tricks used. So think about this, a senior officer worried, scared - what do you think the young enlisted troop feels.
Trickery and deception by law enforcement is an ongoing part of their investigative techniques. How to lie to suspects is a part of their training. Lying and deception by law enforcement is allowed by law and has been approved by the United States Supreme Court as legitimate investigative techniques. You on the other hand will be prosecuted if you lie to them. The best course of action is to say nothing. You might also read, Prof. Slobogin, Christopher, Deceit, Pretext, and Trickery: Investigative Lies By the Police, 76 OREGON L. REV. 775 (No. 4 Winter 1997). Professor Slobigin has quite a long and useful list of writings about criminal justice matters.
Under Current Case-Law From the United States Supreme CourtIf you want a lawyer or to remain silent you must explicitly state:
Law does not mimic real life and so the law says that any other discussion of rights is "ambiguous" and the investigators don't necessarily have to stop their questions.
Your Rights if Being Investigated or Interviewed as a WitnessAre you a military member (active, Reserve, Guard, discharged, or retired) under investigation, suspicion, or prosecution?
- Military law enforcement: NCIS, CID, OSI, CGIS, MP, SP MAA.
- Commander or others in the chain of command.
- Civilians acting on behalf of the military or in a "joint investigation."
- This non-exclusive list includes: Exchange store-detectives/security, Family Services Personnel such as those in the family advocacy program, mental health examiners, and Brig or RCF personnel.
- You will be arrested at the scene of the alleged crime by Exchange store security, by MAA's/MP, or caught in a buy-bust drug sting, for example.
You will be told to go to, or more typically escorted to, NCIS, CID, OSI, CGIS. Your command or escort is instructed not to tell you what is going on. This is part of the game to get you worried and set you up for interrogation. Under the escort circumstance you are not free to leave and so are "in custody." I say this because if you refused to go with the escort or decided to just walk off or decided not to show up, what do you think will happen to you? You'll get disciplined. Thus this is not a situation where you voluntarily show up at the police station. If you are told to go to law enforcement you must obey that order. Now would be an excellent time to tell your escort of supervisor that you want to go via the ADC, NLSO, or TDS, because you'll consult a lawyer first.
I think the escort bit is morally wrong because it's a set-up, but that's the law. However, once there at the law enforcement you do not have to waive your rights or cooperate - and you should not talk or cooperate. They first will have you wait around, again to heighten the stress and concern. Then they will ask you biographical questions. They will tell you this isn't part of the interrogation - that's a lie. Yes they have to get this information for their records. But this is all part of the softening up, "bonding," and rapport building that is part of the psychological techniques they are using. Next they will ask if you know why you are there. They have not advised you of your rights yet. They are hoping for a spontaneous statement that they can use against you.- Your commander or supervisor will start to ask you about an offense you may have committed.
In addition to Article 31, UCMJ, and United States v. Tempia, (the military version of Miranda), there are some other rules and situations where you cannot be interrogated without having a lawyer present.
Read on about games the investigators play before they have you and after they have you in their building.
Are you the spouse of a military member under investigation, suspicion, or prosecution?
- When the "spouse is charged with a crime against the person or property of the other spouse or a child of either[.]"
- When the marriage is a sham marriage.
You should be very careful who you talk to about the case.
Not all questioning of a servicemember by his military superior need be preceded by Article 31 warnings. The servicemember is entitled to this rights advice only if he is a suspect at the time of the questioning and the questioning itself is part of an official law-enforcement investigation or disciplinary inquiry. However, any questioning of a suspect by a military superior in his immediate chain of command will normally be presumed to be for disciplinary purposes.
See United States v. Good, 32 M.J. 105, 108 (C.M.A. 1991).
If it's a friend you are talking to, or a ship-mate then you need to be aware of the Duga rule, or as I say, there are no "friends" or "comrades" when you are in trouble. Duga's attempt to have his unwarned statements suppressed was rejected at trial and on appeal. See United States v. Duga, 10 MJ 206 (C.M.A. 1981).
Games Investigators PlaySome of the items listed here are out and out tricks, others are situations where the investigators take advantage of you or of the system, and primarily your fear and lack of knowledge. Much of this information is readily available in text books, articles, and other materials on the internet, or at your local library.
Pretext phone calls or meeting. If you are a suspect in drug offenses, sexual assaults, or child abuse cases it is quite possible the investigators will conduct a pretext phone call or meeting with you. They will get your spouse or another druggie, or a complaining witness, who knows you to call you, or meet with you, to discuss the situation. The goal is to get statements and admissions they can use against you as evidence. The investigators are either on another phone extension, the call is being taped, or the person is wired. The law is very clear that they don't have to advise you of your rights to silence.
Note: If you have a military no contact order and you suddenly get a text message, email, phone call, or visit from an alleged victim you can bet that's likely a pretext contact. Obey the no contact order and report the contact to your chain of command.
There's no military lawyer available. That's generally true. (One of the reasons you should consider consulting a civilian attorney.) You are unlikely to get put in touch with a military lawyer immediately, especially nights or weekends. In some places you don't get to talk with a lawyer but a paralegal. What the investigator is banking on is that you will be discouraged, decide not to make the effort, and give up and talk. If you do in fact give up, then you've waived your right. Tell them you want to terminate, tell them you want to leave, tell them you will not talk with them again unless they first talk with your lawyer.
Take a break. Tell the investigators you want to leave to go to TDS/ADC/NLSO to talk with a defense counsel. You are entitled to leave.
- The military lawyer won't help you until there are charges. True. This is a misrepresentation. They are in fact guiding you to give up your right to talk with an attorney. The military will provide a lawyer in the beginning. That lawyers role is limited by military regulation to giving you your rights and recommending that you exercise them. The military lawyer does not actually start representation until charges are preferred. Preferral can happen weeks if not months later. Regardless, you should still make the call, take the advice, walk away and remain silent. Call a civilian lawyer who can help you.
You leave the interrogation telling the investigators you want to talk with a lawyer; but you don't talk with a lawyer. A week or so later the investigators ask if you've talked with a lawyer and if you are willing to talk with them. If you say no, you've not talked with a lawyer, they will ask if you will talk with them anyway. If you say yes you just waived your right to counsel and you can be interrogated.
This is what I call a Vaughters problem after a case of that name. If for some reason you haven't or can't talk with a military lawyer, that's just another reason not to waive your rights and talk with an investigator. You did the right thing by "invoking," stick with it!
Confirmation bias is the tendency to bolster a hypothesis by seeking consistent evidence while disregarding inconsistent evidence. An initial hypothesis in a criminal investigation may guide the sort of evidence investigators seek, the leads they pursue or drop, and their interpretations of ambiguous evidence.
CB can lead to false convictions. Taken from, O'Brien, B. and Ellsworth, P. "Confirmation Bias in Criminal Investigations" Paper presented at the annual meeting of the The Law and Society, J.W. Marriott Resort, Las Vegas, NV . 2009-05-25; or Nickerson, Raymond S., Confirmation Bias: A Ubiquitous Phenomenon in Many Guises, 2(2) Rev. of Gen. Psych. 175 (1998); or, Hill, Memon, McGeorge, The role of confirmation bias in suspect interviews: A systemic evaluation, 13(2) Leg. Crim. Psych. 357 (Sept. 2008)(expectations of guilt can indeed have an effect on questioning style and that this in-turn can lead to a self-fulfilling prophecy effect); Meissner Kassin, "He's guilty!": Investigator Bias in Judgments of Truth and Deception, 26 J. Law Human Behav. 469 (Oct. 2004). As a head trial counsel my rule for my trial counsel was to never rely solely on the NCIS reports: do your own interviews and investigation. Defense counsel know not to rely on NCIS/CID/OSI reports. The TC's who do rely on the reports do so at their own peril. Regrettably, the real investigation isn't done until charges are referred and by then it's often too late. And yes, defense counsel can fall into the same trap, as can judges, and members.
What is the most common question if you ask for a lawyer or ask to remain silent?
Why? Why do you want a lawyer, why do you want to remain silent?
Why do they ask this, it's a ruse to try and get you talking and to reconsider your exercise of your rights.
If you are not convinced, here is a useful 49 minutes of your time.
Here's something I recently posted on my blog police attitudes.
Prosecutors ask CID, NCIS, OSI, CGIS agents all the time why they didn't believe the accused in the interrogation. The answer often is a variant of, "he was nervous."
Yeah, right.
First they are told and usually escorted to the LE office. The escort won't tell them why or what's going on. They then have to wait the appropriate time in the waiting area to heighten the tension. I was reminded of this by a post from fourth amendment blog.
Continuing defendant's open container stop for a beer can because he was nervous was unreasonable. "[L]ights and sirens at three o'clock in the morning could make a saint nervous without shedding any light at all on whether there was alcohol in the can." United States v. Hemingway, 2013 U.S. Dist. LEXIS 34517 (D. D.C. March 13, 2013).*
I think the same applies to law enforcement interrogations. A LawFirms.com blog starts out:
Talking with police officers is usually one of the more stressful encounters we have in our lives, and one that we typically avoid at all costs. Even when we've committed no crime, it can be nerve racking, but when we're guilty it's much worse.
Of course there are other "indicia" offered as to why they, the investigators disbelieved the accused. But, cautions those guru's of interrogation (The Reid):
In conclusion, because laughter and humor relieve anxiety, it is common for both truthful and deceptive suspects to engage in these behaviors during an interview. The mere presence of laughter or attempted humor during an interview should not be considered a behavior symptom of deception.
The Reid also points out that:
Furthermore, when accused of wrong-doing, the tendency to deny opportunity, access, motive and propensity occurs within both innocent and guilty suspects.
You can read more about interrogations at The Reid. Why is it valuable for a defense counsel to read The Reid. Well of course it's an aid in understanding how law enforcement may have coerced a confession, or got it wrong. But, it's also an invaluable guide in how you interview your own client and witnesses. I'm not saying you become an investigator or accusatory toward your client or witnesses. The idea of interrogation techniques is to get information. I know law enforcement is only looking for the confession, but you have a broader purpose.
The Reid's final caution today is that research has failed to show there are any noteworthy signs of lying--"There are no behaviors unique to truth or deception."
Of course that leads to my favorite law enforcement response - confirmation bias.