This is the first blog of the series entitled “Pulling Back the Curtain.” The goal of this post is to provide some education and insight into the gears that make the military justice system churn. Hopefully, it will provide you with enough information to allow you to make some educated decisions and ask some educated questions of your attorney.
How Investigations are Born
Every criminal investigation in the Army begins with the discovery of some alleged misconduct. Generally speaking, investigations typically start with notification of a failed urinalysis, the results of some sort of search (like a health and welfare search), or the report of another person. When any of these events transpire, it is your commander’s duty to either report the alleged misconduct to the Criminal Investigation Command (CID) or conduct an investigation of his/her own.
Types of Investigations
Whether your commander reports the alleged misconduct to CID or conducts an in-house investigation depends on the type of misconduct at hand. CID only investigates offenses that are “felony” offenses, meaning that the maximum punishment for that offense at a court-martial is more than one year of imprisonment. If the maximum punishment is one year or less (a misdemeanor type offense), then CID typically will not investigate. So, for example, CID typically does not investigate adultery or a simple fist fight (assault consummated by a battery) because these offenses carry a maximum punishment of one year or less. However, if the allegation is that you intended to cause grievous bodily injury during the fist fight, or that the adultery was nonconsensual, then CID may very well investigate the case.
If the investigation is not suited for CID, then your commander may call the Military Police Investigations (MPI) Office. There, military police officers may investigate the case because it is a misdemeanor. Many times, MPI becomes involved with domestic violence investigations, given that domestic violence often times may encompass a simple assault consummated by a battery (a misdemeanor level offense).
Your commander may also decide to conduct a “commander’s inquiry” pursuant to Rule for Courts-Martial 303. This is a rather informal sort of investigation, and it basically boils down to the commander interviewing witnesses and gathering evidence him/herself, or appointing a subordinate (usually an O-1) to do so. Often times, commanders will initiate this kind of investigation just to determine whether or not any misconduct may have occurred. For example, if rumors are circulating that a Soldier is involved in an adulterous affair, the commander may conduct a commander’s inquiry just to get some preliminary statements from witnesses. This helps him/her determine whether a more formal investigation may be necessary.
If the commander believes that misconduct has, in fact occurred, and he/she wants to conduct a more thorough investigation, then an informal investigation pursuant to AR 15-6 may be appropriate. This is commonly referred to as a “15-6 Investigation.” It starts with the appointment of an investigating officer by the commander. Generally speaking, the investigating officer has a couple of weeks to find the facts and submit a report to the commander, complete with findings and recommendations as to disposition of the alleged misconduct.
What to Expect
1. If you are being investigated for a violation of Article 120, UCMJ (Rape or Sexual Assault, for example), you should expect to receive a no-contact order. Basically, your commander will provide you with a counseling statement ordering you to refrain from contacting the complaining witness in any way. That usually includes text messages, phone calls, emails, social media accounts, etc. This does not, and cannot, include contact through your attorney. You have a right to a complete investigation of the facts of the case. If you cannot contact the complaining witness, how could you possibly investigate the case, yourself? As such, it is very important, even at such an early stage, to ensure that you speak to an attorney (either TDS or a civilian attorney) about your rights.
2. You should expect to be interviewed by the investigator. Now, according to Article 31(b), if the investigator is in the military, they have to explain “your rights” prior to asking any incriminatory questions. Article 31(b) rights are similar to Miranda rights in that you have the right to remain silent, the right to speak to an attorney prior to answering questions, the right to have an attorney present during questions, etc. If you have watched television at any point since 1966, then you’ve heard the drill. However, the difference between standard Miranda warnings and Article 31(b) warnings is actually pretty important to you. In the military, if a Servicemember is questioned by another Servicemember, then the suspect must be informed of the nature of the alleged violation. In other words, if you are called to CID for questioning, and your rights are read to you, CID must inform you about which law, generally, they think you may have violated. This comes in handy, especially when you are innocent and have no clue why you are sitting in a CID office.
I cannot stress the importance of speaking to an attorney prior to giving a statement to CID. I am not necessarily asserting that it is never a good idea to give a statement to investigators. Sometimes, it can be to your benefit. However, speaking to an attorney first in an effort to determine what will be mutually helpful to you and CID is of the upmost importance. If you don’t, you can’t put the toothpaste back into the tube, and you will most certainly pay for it later on.
3. You should expect to receive a request to search your car, phone, house, etc. The Fourth Amendment provides that you have a right to be free from warrantless searches of your property. So, if the government wants to search your property, they have to have a search authorization (we have search authorizations in the Army, not warrants). Even if CID has a valid search authorization, the M.O. is to ask you for consent to search first, prior to executing the search authorization. That way, if something is wrong, legally speaking, with the search authorization, CID can get around it by claiming that you consented to the search, regardless. Moral of the story: don’t consent to government searches of your property unless you receive advice from a good attorney to do so. Period.
4. If you invoke your right to remain silent or to speak to an attorney prior to questioning, expect to be reproached by CID a couple of weeks later. You see, unless you are officially charged with a crime, investigators can continue to request to interview you, even after you have invoked your rights. They are allowed to do so in the off chance that you may have changed your mind during the “cooling off period.” So, you may tell CID that you do not want to provide a statement, and that you want to speak to an attorney first. Then, after a couple of weeks, you may be called back to CID to go through the exact same process. Only this time, CID will say, “have you had a chance to speak to an attorney, and do you want to answer questions now?”
There is one caveat. Once you are officially charged with a crime, and once you are officially represented by an attorney with regard to that charge, government investigators legally cannot speak to you without going through your attorney first. This is a Sixth Amendment right, in comparison to the Fourth Amendment right discussed above.
5. Expect that CID will search your social media profiles, online. By “search,” I mean that they will look at whatever is viewable to the public. I am not telling you to delete any content. However, I am telling you to restrict your privacy settings on your accounts such that the general public cannot see your business.
6. Expect to have your DNA and fingerprints collected. While you are not “under arrest” at CID, necessarily, and you are not being “booked,” Department of Defense policy requires CID to collect your DNA and fingerprints for processing simply because you are a “suspect.” I’ll discuss this a little further below.
7. Expect to not hear any news about the progress of the investigation. CID will purposefully keep you in the dark. Investigators will, however, update your commander from time to time on the status of the investigation. However, agents will also warn your commander to hold the information close to his/her chest, as they don’t want you to know what you’re up against. This is also where an attorney can be helpful. While CID may not provide details to you, they may be a little more willing to provide general information to your attorney.
The CID Interview
Expect CID agents to be particularly nice to you. That’s right. I said nice. You see, CID does not take the “grilling” approach to suspect interviews, generally speaking. Instead, they use what is called the “Reed Technique.” Now, just about every CID agent I have ever met has denied using the technique. However, that’s just because they don’t realize they are using it. They have been trained to ask questions in a certain way, but the Army doesn’t always tell its agents that the method derives from the Reed Technique. The Army probably shies away from this disclosure because the Reed Technique has been found, statistically, to lead to false confessions.
Your interview will go something like this: First, the agent will try to build rapport with you by being really nice, and by trying to make it seem as if you have a lot in common. They want you to relate with them and feel comfortable spilling your guts. Second, they will tell you that they want to hear “your side” of things, and that this is your opportunity to help yourself. They will tell you that they are only there to find the facts. They will ask you what you think should happen to a person who commits the offense of which you are suspected. They will tell you they believe you. They will offer you a couple of different explanations or theories as to what may have happened. Either one will be incriminatory, and they won’t offer the third option, which is that you’re just innocent. They’ll lead you into picking a theory, and just like that, you will have confessed to something you didn’t do.
CID may confront you with the “facts” that they have uncovered thus far. For example, you may be asked: “How do you explain the video footage we have of you committing the crime” or “is there any reason why your DNA was found at the scene?” These are tricks. Period. CID is actually allowed to lie to you during an interview. So, be cautious about believing what the agent tells you. After all, the purpose of an interview is for the suspect to provide information to the agent, not the other way around. When then agent is providing information to the suspect, you can bet that it’s not for the purpose of helping the suspect out.
Expect to be offered a polygraph examination. The agent may say: “I believe you, but I think that taking a polygraph will help convince your commander that you’re telling the truth about what happened.” This is also a trick.
Polygraphs are not scientifically reliable methods of determining whether a person is telling the truth. They are not admissible in a court-martial for this very reason. In fact, as I think back about all of the polygraphs I have ever witnessed, I do not think that I recall a single one that showed the witness was telling the truth. However, CID doesn’t need the polygraph results. They are only a tool to get you back into the interview room after the polygraph exam. It will go about like this: “Well, the machine says that you weren’t fully truthful when I asked you about whether you _____. Science doesn’t lie. So, let’s sit down and you can tell me what really happened.” Then, the remainder of the interview is video taped, and it is now admissible at trial because it is not direct evidence of the fact that you took a polygraph exam. Now, having been told lies, having been told that you lied during the polygraph test, and feeling like this CID agent really cares about you, you start to say whatever you have to in order to get out of the room.
This, my friends, is why any defense attorney worth their salt will tell you: “No statement, no poly, no waiver.”