Being Investigated by NCIS or CID? Know Your Rights, and Utilize Them

Being Investigated by NCIS or CID? Know Your Rights, and Utilize Them

Posted By Feldmann Nagel, LLC || 27-Apr-2018

When you learn you may be invested by a military Criminal Investigative Service, it is important that you know your rights. Most of us have heard of the “Miranda warnings”, but many service members do not realize they are entitled to an additional advisement before being questioned about a crime they are suspected of having committed.

The pre-custodial interrogation advisement of a service member’s right against self-incrimination arises under Article 31 of the Uniform Code of Military Justice. Article 31 provides a service member with the traditional rights to remain silent and advisement that anything the service member says can be used against them in a court proceeding, but also adds an additional protection that the service member must be informed of the nature of the accusation against him before they may be interrogated.

Although this additional protection is indeed a safeguard for the service member, it is important to keep in mind that even if they do advise you of all of your rights, ultimately, invoking your right to remain silent is critical. The investigator of the accusations against you is typically on a mission to get you to waive your rights, in an effort to illicit incriminating statements from you, but in a manner that does not appear compulsory. Verbal and written statements may be used against you, and likely will be used against you, so the best approach is to remain silent and to not make a statement, because that is your right. It is true that you are absolutely innocent until guilt has been proven. Your statements can only fuel any potential proof the prosecution might have against you.

It is also important to understand that just because your Article 31 rights were not read to you, an arrest following the interrogation is not invalid or illegal. The remedy for violations of Article 31 rights is not a disposal of the case against you; rather, the remedy involves complex evidentiary issues, so in the event your rights are not read, consult with an attorney.

When you do consult with your attorney, which you ALWAYS should do, be sure to exercise full disclosure and tell your defense counsel exactly what happened. Be completely honest. Your defense counsel is YOUR advocate, and is not conspiring against you with the prosecutor. If your feeling uneasy about disclosing anything, remember that anything said to your attorney is protected by the attorney-client privilege. This means we risk our license if we disclose, so telling us the truth cannot and will not be used against you. However, your attorney and their law clerks are the ONLY people you should tell your story to. Anyone in the service with you, your superiors, your roommate, and your girlfriend or boyfriend can be called as witnesses against you.

If the accusations against you result in discharge, the Naval Discharge Review Board does NOT have the authority to automatically upgrade your discharge after six months, whether it be for VA benefit eligibility, or to improve civilian or government employment opportunities. They also cannot revoke any discharge or dismissal.

Under Article 15 of the Uniform Code of Military Justice, military commanders are afforded a leadership tool to maintain good order and discipline through the use of non-judicial punishment (NJP) for minor offenses. Before NJP is imposed, the commander must notify the service member of the nature of the misconduct of which the service member is being accused, the evidence supporting the accusation, and the commander’s intent to proceed with NJP. The next phase involves the commander holding a hearing at which the service member may be present. At the hearing, the service member may also have an attorney or other spokesperson present with them. If this is the situation you are in, get an attorney. The service member is allowed to present evidence to their commander at this hearing, and may also request the commander hear testimony from witnesses on the service member’s behalf. It is important to get an attorney because it is possible to be found not guilty at this phase of the proceedings! The commander must be convinced that the service member is actually guilty of the accusations being made against him.

The bottom lines, if you are a service member being investigated by a Criminal Investigative Service, keep two very important things in mind:

  1. You have the right to remain silent, so use it; and
  2. Get an attorney!

Our team at Feldmann Nagel Margulis is composed of veterans who recognize the tactics employed by military investigators. Our attorneys are fueled by their own experiences as service members, and have the skills and knowledge to navigate you through the process of being investigated by a military Criminal Investigative Service. To learn more, visit the attorney profile of Charles Feldmann.

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