Rights of a Military Accused When Questioned by CID, OSI, NCIS or the Command

Assume for this example that you have been involved in a crime. You have been ordered to go to the Army CID, Air Force OSI or the Naval Criminal Investigative Service (NCIS) office. When you arrive at the CID, OSI or NCIS office you are escorted into a very sterile-looking room with only a desk and two chairs. There are no pictures on the walls, but there is a mirror which you suspect is two-way. You are left alone in the room for what seems like an interminable period of time, and all the while you are becoming more and more nervous. Finally, an CID, OSI or NCIS special agent enters the room.

After identifying himself, one of the first things he may ask you is, “Do you know why you are here?” (or words something to that effect). Now you are in a quandary. Does he suspect you of committing a crime? Isn’t he supposed to read you your rights before asking you any questions? Do you answer the question or remain silent? If you do answer this seemingly innocent question, what use can later be made of your answer? You need to know and understand your rights before you answer.

What are Article 31b Rights?

Article 31 of the Uniform Code of Military Justice states: “No person subject to this chapter [that means everyone in uniform plus CID, OSI or NCIS special agents and civilian police officers in military police departments] may interrogate or request any statement from an accused or person suspected of an offense without first: • Informing him of the nature of the accusation; • Advising him that he does not have to make any statement regarding the offense of which he is accused or suspected; and, • Informing him that any statement made by him may be used as evidence against him in a trial by court-martial.” What this means is that, if you are a suspect (and you are in the example given above), before you can be questioned by the CID, OSI or NCIS special agent, he must tell you what crime or crimes you are suspected of committing, and that you have the absolute right to remain silent and say nothing at all. However, if you do decide to talk and make a statement (whether verbal or in writing, and whether true or false) any such statement may be used by the government to try to convict you at a court-martial. You will also be informed that you have the right to consult with a court martial lawyer and to have an attorney present at the interrogation. These latter rights are based not on Article 31, but on the famous Miranda decision. At this point, the CID, OSI or NCIS special agent has read you your rights and you have indicated that you understand those rights. So now what do you do? You basically have three choices at this stage, and each has consequences at any subsequent court-martial, as discussed below.

Your choices are:

1. Invoke your right to remain silent and say nothing (or invoke your right to consult with an attorney before deciding whether or not to answer questions or make a statement and thereafter decide to say nothing);

2. Waive your right to remain silent and make a truthful statement; or

3. Waive your right to remain silent and make an untruthful statement.

Only the first two choices are lawful. The third choice (lying to the CID, OSI or NCIS special agent) is not lawful and, as discussed below, can lead to additional criminal charges being brought against you. If you invoke your right to remain silent, then the questioning must immediately stop. If you choose this option, you should make your election unequivocal (i.e., make it very clear that you choose not to answer questions or make a statement and that you do not want to proceed further without first consulting with a court martial defense lawyer).

If your election is not clear, then a special agent can attempt to get clarification from you. The bottom line is, if you do not want to answer questions or make a statement or if you want to consult with a court martial lawyer before making your decision about whether or not to remain silent, make your choice absolutely clear to the CID, OSI or NCIS special agent / police; then all questioning must immediately cease. If you do invoke your right to remain silent (either before or after consulting with a court martial defense lawyer), then the government cannot use anything that occurred during the interrogation session as evidence against you to try to convict you of the crime. The fact that you invoked your right to remain silent or your right to consult with a court martial lawyer cannot be used as evidence against you for any purpose.

These are your absolute rights based on the constitutional right against self-incrimination, and the fact you chose to exercise your constitutional rights cannot be used against you in any way. The government may still be able to convict you of any crime that you may have committed, but it must do so based on evidence other than what came out of your mouth. Waiving your right to remain silent and telling the truth (assuming in this example that this means confessing to the crime).

If this is the option you choose, then your statement (whether verbal or in writing) can later be introduced into evidence against you by the government at your court-martial. This is very strong evidence of guilt, because people do not usually confess to doing something that they didn’t really do. Although there are certainly cases where people do make false confessions, this is really the exception and not the rule. It is significantly easier for the government to obtain a conviction against someone who confesses to committing a crime than against someone who remains silent. As previously stated, the government may still be able to convict you without a confession, but it must do so based on evidence other than your own statement.

Waiving your right to remain silent and lying to authorities. If you untruthfully deny that you committed the crime, you may well find yourself charged with other crimes. The mere act of untruthfully denying your guilt, without more, means that you can now be charged with making a false official statement to the CID, OSI or NCIS special agent and obstructing justice (and if you swear to your statement, you can also be charged with false swearing).