Investigations

The Government is Focusing On You

You get wind that your command, the military police, or an investigative agency such as the Naval Criminal Investigative Service is investigating an incident and the focus of that investigation is turning toward you.  You need the answer to a number of questions immediately--First and foremost—Should I contact an attorney now, or should I answer the government’s questions first?

You need to consider the following:

• What the government is investigating
• Why the government wants to question you
• How the government will use what you say
• The importance of talking to an attorney first. 

What the government is investigating

This question is not always easy to answer at first.  Often an investigation starts with questions to potential witnesses without focusing on an individual—and those statements could come back to haunt you in the future. 

If you do become a “suspect,” then the government is required to inform you of the nature of the offense before they begin to question you.  Recent court decisions have interpreted this rule as requiring the government to “orient the accused to the nature of the inquiry”—without being specific to the exact nature of the offense.  This means that advising you that they are investigating “the circumstances around the death of a named Marine or Sailor,” or “the distribution of drugs at the barracks” may likely be sufficient—without needing to tell you that you are suspected of murder or being the “kingpin” of a distribution ring. 

For service members in leadership positions, this very general statement would be sufficient to include offenses such as “disobedience to lawful orders or regulations” and “dereliction of duty” for failure to property supervise—in short, you may “know” that you did not kill anybody or distribute drugs, but the government may be focusing on you because they believe that you did not do your job properly and that your failure contributed to the offense. 

Why the government wants to question you

This is the most dangerous question, the one that the government hopes you are asking yourself when they seek to interview you.  Investigators expect that you will waive your rights to find out just what it is they are looking for.  The investigator’s goal is to get you talking, and then to use a combination of persuasion, subtle pressure, and sometimes fear and intimidation to bring you to implicating yourself in the offenses that they are investigating. 

Investigators are seeking two types of information from you—first, a confession—where you admit directly to having committed an offense.  Second, “admissions”—statements that do not amount to a confession, but which removes the requirement to prove the entire case against you.  For example, confirming that you were present at a crime scene while denying involvement in the crime removes the need for the investigators to find others to place you at the scene.  This type of information can be very damaging to your case should it come to trial.

How the government will use what you say

Both confessions and admissions can lead to adverse administrative and disciplinary action—including courts-martial.  Regardless of rank or military job, admission or confession to a crime can land you in court.  For senior enlisted and officers, admissions that they failed to properly do their job—failed to supervise, failed to account for property, failed to appropriately intervene or report—can lead to adverse consequences that have little to do with the courtroom, but may have long term consequences for promotion, reenlistment, or retirement, including:

• Relief for Cause
• Adverse administrative documentation in official personnel records
• Nonjudicial Punishment
• Administrative Separation or “Show Cause” proceedings
• Courts-Martial

Once a statement is made, it leaves your control and is forwarded up the chain of command.  The command can then use it for any lawful purpose.  After talking, the decision to act on what you say lies initially with the government.

You must talk to an Attorney before the Investigators 

The time to talk to an attorney is now, before you talk with government investigators.  This is the time that you can preserve and protect your rights, and maintain control over the time, place and circumstances of any statement that you make.  If you have already made a statement, it is still time to start talking to an attorney—time to start minimizing the potential damage and preparing for what is going to happen next.

Active Duty attorneys are only permitted to give general advice when you are being questioned, and are not permitted to form an attorney/client relationship with you until after you have been confined or the charging process has begun.  A civilian attorney experienced in military law is not subject to this limitation. 

Contact Me.  Now.

I possess this experience and know the military justice system as a seasoned defense attorney, a prosecutor, and a Military Judge.  The time to call is now.