|  You
see it all the time on TV – the criminal gets arrested and
the first thing the police do is to advise the guy of his rights.
“You have the right to remain silent; anything you say can
and will be used against you in a court of law; you have the right
to an attorney; if you can not afford an attorney one will be appointed
to represent you.” Surprisingly, even the most hardened criminals
will frequently waive their rights and confess their crimes. That
is great for society – it helps bring the criminal to justice.
Confessions are considered as the strongest form of proof known
to the law and frequently lead to resolution of the case with a
Guilty plea.
Now I want to talk about real life. Lets take the case of a hypothetical
Chief who has 19 years of outstanding service, is married, has two
teenage sons and is looking forward to retiring in a year. The problem
is the Chief has been falsely implicated as being involved in a
DRMO larceny ring involving several sailors. When NCIS contacts
the Chief, he is read his rights under Article 31, UCMJ for conspiracy,
larceny of military property and wrongful disposal of military property.
The pressure is on - What should he do?
Option 1: Waive his rights. If the Chief is truly
innocent, this certainly is what is “expected” of him
– why would an “innocent” man invoke his rights?
It is that logic that ends up creating problems for many people
who are falsely accused of a crime. One problem is that if the Chief
makes a statement, and the command thinks he is not being truthful,
he now will also likely be charged with making a false official
statement. Another problem is how well will the Chief fair under
an intense interrogation over several hours by two seasoned NCIS
agents who think he is involved with criminal activity. I have seen
situations where a truly innocent person ends up faltering under
intense police interrogation – sometimes to the point of making
a full “confession,” and sometimes making certain comments
that can easily be contradicted. That may be all it takes to convince
a court the Chief is lying (even if he is not). One more problem
is the interpretation factor: If the Chief makes an oral, but not
written statement, he is at the mercy of the agents’ interpretation
of what he said. Regrettably, the version of the Chief’s oral
statement that comes out at the Court-Martial through the agents’
testimony may be totally different than what the Chief actually
said, but may end up being all that is necessary to secure a conviction
of an innocent man.
Once a suspect waives his rights and makes a statement denying
involvement in the crime, a common tactic of investigators is to
ask if the person will take a polygraph. The Chief may be nervous
about that, but he will be assured that if he is telling the truth
as he says, he has nothing to worry about and the polygraph will
clear him of any suspicion. The pressure is on again – what
does he do? The lack of reliability of a polygraph is well known.
If he takes the polygraph and is “deceptive” in the
opinion of the polygraph examiner, he will then be totally under
the gun and pressed to “come clean.” You can see the
cycle here and where this is heading.
Option 2: Invoke his rights, ask for a lawyer
and remain silent. Whether innocent or guilty, this is the wiser
choice! If innocent – the Chief eliminates the risk that he
will say something that will end up hurting him. Invocation of rights
and remaining silent should not be misinterpreted, even by the best
of law enforcement agents. If the Chief remains silent, he will
not be charged with making a false official statement to the agents.
The fact that the Chief invoked his rights when he was questioned
can not in any manner be brought to the attention of the court.
Regrettably, if the Chief has been implicated in criminal activity
of this severity, he will very likely face charges and eventual
Court-Martial. If the Chief has talked to the investigators and
there is evidence which supports the allegations, the Chief’s
denial to the investigators will likely not carry much weight and
chances are very good he will end up facing an additional charge
for lying to the investigators. From a defense perspective, it is
almost always to the benefit of the accused if he does not talk
to the investigators. The basic defense advice is – INVOKE
YOUR RIGHTS, REQUEST AN ATTORNEY and REMAIN SILENT!
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