Should I make a statement to law enforcement?

Should I make a statement to law enforcement? A question that any servicemember must ask themselves if they are the subject of a criminal investigation.

Several weeks ago, a client of MJA requested and received a meeting with his commanding general in accordance with the Army Regulation 600-20 “Open Door” Policy. The MJA client, who is an officer under investigation for sexual assault, wanted to specifically request of the general not to take any administrative action against him that would be permanently filed with Army Human Resource Command, until his pending court-martial had been fully adjudicated. Despite the request being of an administrative nature, the commanding general proceeded to act as the investigator, and asked the MJA client, “so, what did happen that night,” whereby the MJA client, stated, “Sir, my attorney has advised me to not make any statements related to the facts and circumstances of the allegations or investigation.” Upon, hearing this the commanding general, stated, “well, your attorney just hosed you…”.

So is the Lieutenant General correct? Do defense attorneys regularly “hose” their clients when they tell them to remain silent under questioning by law enforcement?

The question of whether to make a statement to law enforcement or to the command is a rather easy one to make in a vacuum, particularly when the servicemember under investigation understands that neither his command, nor law enforcement is looking out for his best interest. However, the invocation of one’s right to remain silent becomes much harder in practice when the full weight of the Federal government is bearing down on you.

1. Even maintaining innocence can amount to charges being preferred against you. Under the Uniform Code of Military Justice, a servicemember can be charged for making false official statements to law enforcement or their command. For example, if the accused were to say, “I never touched her…I have no idea what you are talking about…”, the command could charge the accused with making a statement he knew to be false at the time in which he made it about whether he actually “touched” the alleged victim.
2. Invoking your right to remain silent is not an orders violation. A common misperception, particularly in young servicemembers, is if their command orders him to make a statement then he must make a statement. Any suggestion that servicemember’s Constitutional rights are stripped as soon as they join the military is error; however, there is a perception by servicemembers that if they do not make a statement to their command about the allegations then they will be punished, or at the very least make their command upset with them.
3. Law Enforcement does receive training on interrogative techniques. Criminal investigators often get specialized training on how to conduct interviews or interrogations of the accused. As one would expect, this training provides very effective tools and techniques for the investigator to use during future interviews to elicit incriminating statements by the accused. Some of these coercive techniques can be described as “minimization” (i.e. inferring to the accused that the allegations are not serious), “non-denial” (i.e. not allowing or refusing to allow accused to deny the allegations for long periods of time); and, “false evidence ploy” (i.e. investigator telling the accused that his “DNA is everywhere in the room” when this is not the case). These coercive techniques are taught to the investigators because they are very effective, but many times they can be too effective, and servicemembers (particularly young and less intelligent) can confess to things they simply did not do.

So should a servicemember make a statement to law enforcement when they can be charged for merely maintaining their innocence? Should they make a statement when their command and law enforcement have already identified them as a suspect? Should they make a statement when law enforcement are trained to not allow the suspect to deny the allegations?