This guide will summarize what steps to take when you learn that you are facing investigation by CID, MPI, OSI, NCIS, or Marine CID.
1. Invoke Your Rights
Before anyone (your command or military law enforcement) can question you about a crime that you are suspected of committing, they have to advise you of your Article 31 rights. Article 31 rights are similar to Miranda warnings but included under Article 31 is that they have to tell you the suspense that you are suspected of committing. Before military law enforcement even get to the part where they "read you your rights", they typically will fill out a form with you that asks you for physical description and some basic biographical information. The real purpose of filling out this form with you is to try to "build rapport". They want you to feel more at ease with them so that you are more likely to talk to them about the crime they suspect you of committing. They will often lie to you as you tell them information like where you are from (e.g. "Oh, I have a cousin who lives there.") so that you will tend to feel like you have something in common. Their entire goal is to get you to waive your rights and hopefully admit to a crime, say something that will at least give the impression that you did things that make you look like you felt guilty, or will say something that they can later definitely prove is false to show that any denial you make is also false. Bottom line: do not make a statement, at all. Even verbal statements can be used against you. Some clients will make an oral statement to the police, refuse to make a written one, and then are shocked that their oral one is an official statement. Later, after you have the representation of an attorney, there is always the opportunity to later make a statement if you and your lawyer agree that it is in your best interest. With an attorney, you can exert more control over the situation to make your statement about giving law enforcement actual information instead of having to sit through police interrogation tactics and techniques alone. Some of these tactics include telling you that they just want to get your version of events, that they are just trying to get to the truth, that it will be better for you if you can just clear things up. The actual truth is that they have long decided that you are guilty and their entire job is to now make you admit that you are guilty. They are not your friends, and they do not want to investigate anymore by the time they get to you.
2. Do Not Consent
After you invoke your rights, military law enforcement may very well ask you to consent to a search and/or a seizure. Depending on the facts of your case, they may ask consent to go to your home, to look in your car, to look through your cell phone for pictures, text messages, or call history. They may ask for you to give a DNA sample or to go through a sexual assault exam for alleged perpetrators. Do not consent to anything. Period. Do not help law enforcement at all even if you think, "I have nothing to hide." If a magistrate is convinced that there is probable cause to believe that those places or items have evidence of a crime, then law enforcement will come back anyway with a search authorization, which is the term that the military uses for a warrant. Make them get the warrant; do not consent.
3. Continue to Keep Your Mouth Shut
After you invoke your rights, military law enforcement will not release you right away; someone from your command will have to come take charge of you. Often agents stall a bit in the hopes that you will come back to them before you leave the station and decide to talk with them "to just clear things up". Stay strong, and resist the temptation to reengage with them. Military law enforcement will also take you to a booking room and take "mug shots", fingerprints, and a DNA sample. Please note that this DNA sample is not one that they can use for scientific testing and comparison for the investigation. This is a DNA sample that military law enforcement keeps until a process called "titling" occurs. If law enforcement has DNA evidence in the case and there is probable cause, they will come back to you with a warrant for your DNA. It can be informative to see what warrants they come back with to see how strong their case is against you. One of the biggest disadvantages that you and your defense team will have is receiving information after the government does; refusing to give consent and then waiting to see if they can obtain a warrant can be informative to the defense before the defense ever receives any of the investigation packet, which will not occur until you are officially charged by your command. Do not discuss your case or involvement with law enforcement with any of your friends or anyone in your chain of command. Even the most innocent comment can be remembered differently from the listener and then later used against you. Any seasoned prosecutor is going to interview your friends to see if you said anything to them about the case; your friends do not have to read you your rights so anything you tell them can later come back against you. Any perceived "change in your story" from person to person can also be introduced against you as evidence that you feel guilty about committing a crime. Do not put your friend in the position of having to try to remember what you said, let alone what you meant, and then suffer through having to testify against you. Keep your mouth shut to law enforcement or even friends and family.
4. Talk to a Lawyer Immediately
Once you are officially under investigation, you are entitled to speak to a military defense lawyer. By regulation / instruction, this military attorney will give you "suspect rights" which essentially advises you to not make a statement to law enforcement and to keep out of trouble while the investigation runs its course. A military attorney cannot start talking to witnesses and will not advocate to the command for you about why you should not come under formal charges. The military attorney will essentially tell you to come back once you have a charge sheet. Given the regulatory restrictions of the military defense counsel, you will want to consider hiring a civilian attorney who specializes in court-martial defense. Most civilian attorneys in military practice will give you a free consult so take advantage. Should you desire to hire a civilian attorney, that lawyer can work with you to help shape your defense, perhaps steer the direction of the official investigation, and find out information about the timeline of what to expect, and advocate to your command.
5. Follow to the Command's Orders
While you are being investigated, you may receive an order to not contact one or more people, also known as a military protective order. Do what the order says. You will only make things worse for yourself by not doing so. If the order says not to contact a complaining witness, do so. Failing to listen to these orders will result in the stacking of charges against you for failing to obey a lawful order. Often by staying away from complaining witnesses specifically, they may reach out to contact you; this only helps your case. Remember that a civilian attorney can reach out to people who you have been ordered to stay away from on your behalf.
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