Criminal Defense

YOU ARE IN THE MILITARY AND YOU DO HAVE RIGHTS

Don't waive them!

RIGHT TO SILENCE,

RIGHT TO A LAWYER,

RIGHT TO LEAVE,

RIGHT TO SAY NO TO A SEARCH, and TELL THEM TO LEAVE.

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?

Read on, 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.

Trickery and deception by law enforcement is an ongoing part of their investigative techniques. Lying and deception by law enforcement is permitted 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 law enforcement. Thus the best course of action is to say nothing. You should read, Slobogin, Christopher, Deceit, Pretext, and Trickery: Investigative Lies By the Police, 76 OREGON L. REV. 775 (No. 4 Winter 1997), to get the full picture. There are many places on the web where you can read about investigator lies.

Are you the military member?

1. How may you end up being interrogated (or questioned) about a potential offense?

a. Military law enforcement: NCIS, CID, OSI, CGIS, MP, SP MAA.

b. Commander or others in the chain of command.!

c . Civilians acting on behalf of the military or in a "joint investigation."

a. This non-exclusive list includes: Exchange store-detectives/security, Family Services Personnel such as those in the family advocacy program, and mental health examiners.

2. How will this happen.

a. 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.

b. 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." If you are told to go to law enforcement you must obey that order. I think that's wrong because it's a set-up, but that's the law. However, once there you do not have to waive your rights or cooperate -- and you should not talk or cooperate.

c. Your commander or supervisor will start to ask you about an offense you may have committed.

3. 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.

Are you the spouse?

a. If you are a civilian spouse your right to silence is more limited than the military member. The police only have to advise you of the right to remain silent and have legal counsel if you are suspected of an offense and are in custody. This situation while distressing is fortunately rare.

b. More often you are being approached so that the investigators can get information and evidence to use against your spouse and put him/her in jail.

c. You cannot be forced or ordered to talk to CID, NCIS, OSI, CGIS, or any other military law enforcement person about any alleged crime involving your spouse. It doesn't matter whether you are in the m! ilitary yourself. The investigator's will not tell you that you can't be forced to talk with them; many times they will leave you with the idea or impression that you must. If you start to question them they will change the topic. They will change the topic to how your help will help your spouse by cooperating with them. Remember, they are not there to help your spouse. They are there to gather evidence to put your spouse in jail. (Caution, as of October 2009, the Department of Defense is considering a change to the spousal privilege rule for situations where you and your spouse are both under investigation as co-conspirators in the same crime.)

d. You cannot be compelled or forced to consent to a search of your house, car, or other belongings, by CID, NCIS, OSI, CGIS, or any other military law enforcement person for an alleged crime involving your spouse. You can refuse consent and make them get a warrant, or search authorization if you live on base. It doesn't matter whether you are in the military yourself.

e. Under Military Rule of Evidence 504, the spousal privilege, you cannot be compelled to testify at all against your spouse if you don't want to, and your spouse can prohibit certain testimony even if you do decide to testify. It doesn't matter whether you are in the military yourself. However, if you or your children are the alleged victims of your spouse, you do not have the right to refuse to testify and can be compelled to testify by subpoena. You can still refuse to talk with them in an interview. Under Military Rule of Evidence 504, there is an exception to a spousal privilege:

(1) When the "spouse is charged with a crime against the person or property of the other spouse or a child of either[.]"

(2) When the marriage is a sham marriage.

f. You cannot be compelled to travel outside the United States to testify as a witness, even if the government agrees to pay your expenses, unless you are active duty yourself. If you are located in a foreign co! untry, t here may be a treaty which applies to compelled testimony.

Are you the family member?

a. You cannot be compelled or forced to talk to CID, NCIS, OSI, CGIS, or any other military law enforcement person about an alleged crime involving a family member. It doesn't matter whether you are in the military yourself. The investigator's will not tell you that you can't be forced to talk with them. If you start to question them they will change the topic. They will change the topic to how your help will help your family member -- they are not there to help your family member. The investigators are there to gather evidence to put your family member in jail.

b. You cannot be compelled to consent to a search of your house, car, or other belongings, by CID, NCIS, OSI, CGIS, or any other military law enforcement person for an alleged crime involving a family member, and make them get a warrant. It doesn't matter whether you are in the military yourself.

c. You can be compelled to testify at a trial by subpoena.

d. There is no privilege to decline to testify.

e. You cannot be compelled to travel outside the United States to testify as a witness, even if the government agrees to pay your expenses, unless you are a military member.

Your rights during a search.

a. You do not have to consent to a search and you should not -- never. Why do they ask for consent? Well consent is easy, they don't have to do any paperwork, and more importantly they don't have to justify the search to a magistrate (not that military magistrates can not be rubber stamps).

b. You can terminate a search at any time unless the search is with a warrant. Make them show you the warrant. If they don't show you a warrant tell them to leave until they do have a warrant. Don't let them flash a piece of paper in your face, read it. Ask them for an inventory right then and there of what they are taking. If they refuse, make a diary note of the details. The lack of courtesy, prof! essional ism, high-handedness may not be illegal, but it can help to characterize the agents attitude and demeanor and may be helpful in discrediting them.

c. If you are the spouse you do not have to consent. Ask them what your spouse said about consent. They will not tell you, or some will lie. They will lie and tell you that he/she consented, but they just need your consent to cover the bases. That's a lie. If your spouse isn't there with them, you should assume he/she did not consent and that he's being kept away from you while they get you "to cooperate to help" your spouse.

A few games investigators play.

Some 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.

a. 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 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.

b. The route to interrogation. In general this is the order or escort to the interrogation. You are kept in suspense. When you arrive you are then going to cool your heels for 10 to 20 minutes. Again another little technique to heighten the tension.

c. There's no lawyer availab! le. Thi s is not exactly a game, but it's a situation where the investigators take advantage of you and of the system.

(1) There's no military lawyer available. That's generally true. You are unlikely to get put in touch with a military lawyer immediately, especially nights or weekends. What the investigator is banking on is that you will be discouraged and give up and talk. 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.

(2) The military lawyer won't help you until there are charges. True, but . . . By regulation a military lawyer is not assigned to you until there are charges. What the military lawyer will do is give you basic advice about your rights and that's all. Make the call, take the advice, walk away and remain silent. Call a civilian lawyer who can help you.

(3) 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 al 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!

REMEMBER, WAIVE NOTHING BUT THE FLAG WHEN FACED WITH MILITARY INVESTIGATORS!