Your Rights

Don’t Waive Them!

• Right to Silence
• Right to talk to a lawyer
• Right to terminate or stop an interrogation
• Right to leave the interrogation
• Right to say “No” to a request for permission to search

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.

• Prosecution Exhibit 2 Transcript, Video Pt 1_WMV
• Prosecution Exhibit 2 Transcript, Video Pt 2_WMV
• Prosecution Exhibit 2 Transcript, Video Pt 3_WMV
• Prosecution Exhibit 2 Transcript, Video Pt 4_WMV

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 Court

If you want a lawyer or to remain silent you must explicitly state:

• “I want a lawyer.”
• “I will not speak and I exercise my right to silence.”

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 Witness

• Advice to the MILITARY member
• Advice to the SPOUSE
• Advice to the FAMILY

Are you a military member (active, Reserve, Guard, discharged, or retired) under investigation, suspicion, or prosecution?

1. How may you end up being interrogated (or questioned) about a potential offense? The current teaching is not to call their interrogation an interrogation but a suspect interview. They have learned that the use of the word interrogation is a loaded word. Regardless of the semantics you are still being interrogated.
   1. Military law enforcement: NCIS, CID, OSI, CGIS, MP, SP MAA.
   2. Commander or others in the chain of command.
   3. Civilians acting on behalf of the military or in a “joint investigation.”
   4. 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.
2. How will this likely happen?
   1. 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.
   2. 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.
   3. 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. 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?
   1. 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.
   2. More often, you are being approached so that the investigators can get information and evidence to use against your spouse and put him or her in jail.
   3. You cannot be forced or ordered to talk to CID, NCIS, OSI, CGIS, or any other military law enforcement person about an alleged crime involving your spouse. It doesn’t matter whether you are in the military yourself. Some years ago I had a situation where a trial counsel (prosecutor) was threatening a military spouse with discipline because she refused to testify against her military husband. The judge put a stop to that very quickly – it is illegal under the UCMJ and professional ethics rules. 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. A spouse has two evidentiary privileges in military law. Under Military Rule of Evidence 504, a spouse can refuse completely to testify against the other spouse, and in most situations the accused can prevent the spouse testifying about statements made by the accused to the spouse. Not too long ago I had the experience of a trial counsel ordering a military spouse to testify against her husband and threatening her with punishment if she refused. The military judge dealt with that very very quickly. If you the spouse 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.)
   4. 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 you or your spouse. You can refuse consent and make them get a warrant or a search authorization from the base commander if you live on base (this includes government contracted housing). A base commander does not have authority to authorize a search of civilian property not located on base. It doesn’t matter whether you are in the military yourself.
   5. 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. There are exceptions if you or your child are the victim of your spouse. It doesn’t matter whether you are in the military yourself. 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 (unless located overseas in some situations). You can still refuse to talk with them in an interview. Under Military Rule of Evidence 504, the exception to a spousal privilege is:
      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.
   6. 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 country, there may be a treaty which applies to compelled testimony.

Are You a Family Member of a Military Person Under Investigation, Suspicion, or Prosecution?

1. 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.
2. 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.
3. You can be compelled to testify at a trial by subpoena.
4. There is no privilege to decline to testify.
5. 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 About Searches

1. 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 cannot be rubber stamps).
2. You can terminate a consent search at any time unless they show up 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, professionalism, high-handedness may not be illegal, but it can help to characterize the agents attitude and demeanor and may be helpful in discrediting them.
3. 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 or she did not consent and that he’s being kept away from you while they get you “to cooperate to help” your spouse.

Commanders, Command Confinement Visits, Friends, and Others

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 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.

1. 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.
2. 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.
3. There’s no lawyer available. This 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. (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.
   2. 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.
   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 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!
4. Some of their tricks.

1. We can help you. They can. They can help you convict yourself and make their job easier. The investigator is out to get a confession. Once the confession or statements are obtained there is much less work for the investigator. Even trial counsels can get frustrated with how investigators stop work once the confession has been obtained. Some investigators are in fact honest about this. They explain that they can advise the commander you cooperated. But that’s it. The commander is not required, and many times doesn’t, give much credit for that. So it’s not exactly an empty promise, but it’s close. Other less honest investigators leave you with the impression that they can do more than make a recommendation. A few truly dishonest investigators make specific promises.
2. We can help you with your command. Investigators aren’t allowed to make promises. So they can’t say, “If you help us you won’t go to jail.” That’s a promise they can’t keep. So they are more sophisticated in how they give you the impression, the deniable impression, that by cooperating you won’t be punished as hard as you could be. So the impression is made that by talking with them they will tell your command you were cooperative. The inducement is that the command will somehow agree with the investigators and not treat you as harshly. Investigators have no control over the discipline process, all the control is with the commander.
3. You’re not a bad person, we understand. You can be a multiple murderer, but they will tell you something like this. It is a technique advocated by the number one teachers of interrogation… Reid. You are made to feel that because they agree you are not a bad person, that there must be other reasons for the crime, perhaps even it was the victims fault. By lowering the level of guilt they hope to get you to feel better about confessing.
4. Mutt Jeff. The technique is seen so frequently on TV that I’m surprised it continues to work. But again from my old police experiences the technique works. The technique is very easy to identify. The bad cop is the one who is loud, obnoxious, and isn’t easy to deal with. The good cop is the one who is calm, pleasant, will get you water or a cigarette, and will “get him (the bad cop) to calm down, if you will just cooperate.”
5. It’s off the record. It is never off the record. Anything you say to them is usable. Many clients tell me they didn’t make a statement. That’s often true in a some sense. The client didn’t make a written signed statement. However, all of the oral discussions before that are in fact “statements” and they can be used against you.
6. The xerox machine is not a lie detector. True story. The Suspect is told that he can place his hand on the machine (a xerox) and it will tell if he’s lying. He puts his hand flat on the machine and is asked his name. The agent duly hits the “print” button and out comes a paper with “True.” The next question was, “Did you . . .,” well you can guess the rest…
7. We are just gathering the facts. This is not exactly a lie. But it’s a misrepresentation. The investigators will engage in what is called “confirmatory bias” as they investigate. Some agents are very deliberate in this and others do so without being aware that’s what they are doing. CB is a very well established psychological principle. When the report and statements are put together, the result is biased. Over the years I’ve had a number of senior clients who were or are commanders – “That’s not what I said,” or “That’s not accurate, that’s biased.” These senior officers and commanders are learning what their junior personnel learned and tried to tell the commander about their investigations.

Choose a Definition You Feel Comfortable With

1. Confirmation bias is a cognitive bias whereby one tends to notice and look for information that confirms one’s existing beliefs, whilst ignoring anything that contradicts those beliefs. It is a type of selective thinking.
2. Confirmation bias is the technical name for people’s desire to find information that agrees with their existing view.
3. In psychology and cognitive science, Confirmation bias (or confirmatory bias) is a tendency to search for or interpret information in a way that confirms one’s preconceptions, leading to statistical errors.
4. Confirmation bias is a phenomenon wherein decision makers have been shown to actively seek out and assign more weight to evidence that confirms their hypothesis, and ignore or under weigh evidence that could dis-confirm their hypothesis. As such, it can be thought of as a form of selection bias in collecting evidence.
5. 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.