Under Investigation? Know Your Rights and Don’t Engage the Enemy Alone
By: Mike Eaton, Esq.
You feel sick in the pit of your stomach. You have just found out, either through the grapevine or by formal notification, that you are under investigation. Your first reaction is to take action and clear it up—fast! That makes sense, right? As service members, we are all trained to confront threats and to act decisively to deal with them. If you are under investigation, though, it is usually in your best interest to fight that urge.
In general, there are four main categories of military investigation: property damage or loss, illness/injury in the line of duty, command-directed, and criminal. In many cases, there is overlap among the different types of investigations. For example, a property damage investigation may begin as a command-directed investigation that reveals that misconduct or negligence was the cause of the loss, which in turn results in a referral for criminal investigation.
Because these investigations can result in punitive action, this article focuses on the steps you must take to protect yourself when faced with a command-directed or criminal investigation. There are simple dos and do not’s that you should remember so that you can get the best possible outcome for your situation.
Keep Calm and Carry On
Most service members have never been in serious legal trouble, and when confronted with this situation, it is only natural to imagine the worst. However, letting your imagination run wild will only complicate matters more. Criminal investigations can be a lengthy process and being able to coolly assess the situation and act rationally to assert your rights and protect yourself at all times can be the difference between maintaining and protecting your military career or facing the consequences.
Whether you learn about the investigation formally or informally, start taking note of precisely what you are being told. The exact charge(s) may appear hazy at the start of the investigation, but you should try to learn and remember as much as you can. This will help you later when you—and any counsel you choose to consult with—are deciding on the best course of action for your case. Concentrate on learning the who, what, when, where, and how of the allegations. If you do choose to talk to an attorney, be prepared to provide anything you learned or heard.
Assert Your Rights
First off, the most important thing to do when under investigation is to keep quiet. Under Article 31b of the Uniform Code of Military Justice, you have the absolute right to remain silent when confronted with an accusation of criminal misconduct. It may be tempting, especially in the face of unfair accusations, to try to “clear this up.” Don’t fall into that trap. Investigators, particularly those from law enforcement agencies like the Army’s Criminal Investigations Division and the Navy’s Criminal Investigative Service, are not your friends and are not likely to help you. What you tell them will be twisted and misconstrued into something that only digs your hole deeper. So, rather than handing them a metaphorical shovel to dig yourself even deeper, save anything you learn or that you think might be useful for when you and your attorney decide on your best course of action.
Second, do not agree to anything. Depending on the circumstances, you may be asked to “volunteer” to let an investigating officer go through your phone, your car, your living area, your computer, or any other place that might have helpful information. Both the Constitution and the UCMJ guarantee your right to refuse to consent to searches and seizures. You should also avoid agreeing to anything that the agent says will “help clear your name,” such as lie detector examinations. Lie detectors, formally known as polygraphs, are based on your physical reactions to questions posed by law enforcement agents. The polygraph examiner will often try to get you to offer additional information by telling you that the test shows you are lying or withholding information, even if that is not the case. Remember what I said earlier about not handing the investigator a shovel to help dig your hole deeper?
Third, tell the investigator you want to speak with a lawyer. The investigator may try to talk you out of it by telling you that if a lawyer gets involved, they will be unable to help you. The investigator’s job is to try and ferret out any incriminating information from you, not to try and help you. So don’t fall victim to thinking that you have to go through this difficult and stressful investigation process alone. An attorney can act as a liaison between you and law enforcement, as well as help you evaluate the evidence present, determining what will be helpful and harmful to your case
Usually, at the onset of an investigation, law enforcement or your commander will give you specific orders, such as not to contact the person making the allegations and witnesses. Obey these orders! Contacting the accuser or other witnesses can easily be viewed as witness tampering or obstruction of justice, even if that is not your intent. These are offenses that can lead to punishment, even if you are ultimately cleared of the original charges. In addition, continuing to do your job and remaining professional will likely impress your command, making them more likely to be willing to help you if needed.
Remember, You Are Not Alone
In the end, while it is not expected that any service member should know how to navigate the complex proceedings of a criminal investigation, being aware of your rights and some crucial dos and do not’s will put you on the right path toward protecting your interests. Regardless of whether you choose to work with an experienced attorney, understanding your charges and the relevant laws, how to interact with law enforcement and investigators, and how to conduct yourself during the investigation will put you on the best possible path to clearing your name.
Mike Eaton, a Senior Associate in Tully Rickey’s Washington, D.C., office, possesses a vast array of courtroom experience in all matters of military and criminal law, having practiced law across multiple positions for the last 15 years, including as a United States Army Judge Advocate, Assistant United States Attorney, and Assistant Commonwealth’s Attorney. He can be reached at [email protected] or at (888)-529-4543.