FAQs: Military Criminal Investigations and Court-Martial; Frequently Asked Questions

1. What should I do if I learn that I am under military criminal investigation?

Contact an experienced military defense lawyer before speaking with investigators. You have the right to remain silent and to consult counsel. Investigators may already have interviewed witnesses, collected evidence, or developed a theory about what happened.

At Cave & Freeburg, we represent servicemembers during investigations, often before anyone has decided whether to bring charges. Early representation allows us to assess the allegations, preserve favorable evidence, and begin an independent investigation.

2. Can a military criminal investigation end without charges?

Yes. Not every allegation results in criminal charges. Investigators may find insufficient evidence, witnesses may contradict the allegation, or prosecutors may determine that a court-martial is unwarranted.

Cave & Freeburg has represented servicemembers whose investigations ended without criminal charges. In some cases, our independent investigation and communications with responsible authorities helped achieve that result.

3. Should I speak to CID, NCIS, OSI, or CGIS without a lawyer?

Generally, no. Even an innocent servicemember can make statements that investigators misunderstand or later use against them.

Under Article 31(b), UCMJ, servicemembers suspected of an offense have important rights against compulsory self-incrimination. Before answering questions about suspected misconduct, consult defense counsel.

You can cooperate with lawful investigative requirements while declining to make an incriminating statement.

4. Can a civilian military defense lawyer represent me before charges are filed?

Yes. You do not have to wait until the government prefers charges to retain civilian defense counsel.

Cave & Freeburg represents servicemembers during criminal investigations, including matters involving sexual assault, domestic violence, fraud, and other alleged UCMJ offenses.

Early representation may allow counsel to identify favorable witnesses, preserve evidence, address legal issues, and communicate with investigators or prosecutors before charging decisions are made.

5. What is the Office of Special Trial Counsel (OSTC)?

The Office of Special Trial Counsel is part of the military justice system established to place important prosecutorial decisions involving certain serious offenses in the hands of specially qualified military prosecutors.

Special trial counsel exercise independent authority over covered offenses and may exercise authority over other offenses as permitted by law.

The OSTC system changed who decides whether certain cases proceed to court-martial. It did not eliminate the rights of accused servicemembers or the need for an effective defense.

6. Who decides whether I will face a court-martial?

That depends on the alleged offense.

For covered offenses over which special trial counsel retain authority, special trial counsel make the referral decision. For other offenses, an authorized convening authority ordinarily decides whether to refer charges to trial.

Defense counsel may present evidence and legal arguments before those decisions are made. The objective may be dismissal, a decision not to prefer or refer charges, or another appropriate disposition.

7. What is the difference between preferral and referral of charges?

Preferral is the formal act of accusing a servicemember of violating the UCMJ. Referral is the decision to send specified charges to a particular court-martial for trial.

The two decisions are distinct. Preferred charges do not automatically proceed to trial.

Defense counsel can challenge the allegations and advocate against referral.

8. What happens at an Article 32 preliminary hearing?

An Article 32 preliminary hearing, when required, examines whether probable cause supports the charges, whether the court-martial would have jurisdiction, whether the charges are properly framed, and recommendations concerning disposition.

The hearing is not a trial and does not determine guilt.

Experienced defense counsel can use the hearing to challenge the government’s evidence, identify weaknesses in its case, and argue against referral.

9. Can charges be dismissed after they are preferred?

Yes. Charges may be dismissed before trial. The authority and procedures depend on the stage of the case and whether special trial counsel or command authorities control disposition.

Dismissal does not always prevent the government from pursuing charges again. The circumstances and applicable rules matter.

Cave & Freeburg evaluates opportunities to seek dismissal throughout the proceedings.

10. How long does a military criminal investigation take?

There is no single timetable. Some investigations conclude within weeks or months. Others, particularly those involving electronic evidence, forensic examinations, or numerous witnesses, take considerably longer.

An extended investigation can affect a servicemember’s assignment, promotion opportunities, security clearance, and career.

Defense counsel can monitor the investigation, preserve evidence, and address unnecessary delay when appropriate.

11. Can I be separated from the military even if criminal charges are never filed?

Yes. A command may pursue administrative action even when an investigation does not result in a court-martial.

Depending on the circumstances, a servicemember may face administrative separation, adverse evaluations, reprimands, or other career consequences.

A decision not to prosecute does not automatically end every administrative concern. Defense counsel should consider both criminal and administrative consequences from the beginning.

12. Why hire Cave & Freeburg before a court-martial?

Because the defense of a military criminal case should not begin on the day charges are filed.

Cave & Freeburg’s lawyers have extensive experience with military investigations, preliminary hearings, courts-martial, and appeals. We understand how investigative decisions can shape a prosecution and how early intervention may prevent a case from reaching trial.

We have helped clients resolve investigations without criminal charges, challenged unsupported allegations, and defended servicemembers in contested courts-martial.

Our objective is to protect the client’s rights, career, and future at every stage.

For assistance, visit Cave & Freeburg, LLP or contact the firm to discuss your circumstances.

Prior results do not guarantee a similar outcome. Every case depends on its particular facts and applicable law.