Its a normal Tuesday morning. You report for work as usual but soon after your immediate supervisor pulls you aside and says to you: “NCIS (or OSI, CID, or base police) is here and wants to see you now.” You are ushered into an office, the door is closed behind you and two agents identify themselves as law enforcement and show you their badges. What do you do?
The first thing you need to be aware of is that if you are suspected of having committed a criminal offense in the military, you have the right to remain silent and not answer any questions regarding the alleged offense. You also have the right to speak to a military defense lawyer before making any statement to investigators. These rights are guaranteed by the U.S. Constitution and the Uniform Code of Military Justice (UCMJ). Of course, simply being aware of and invoking your rights does not guarantee that charges will not be brought against you. In many instances, attempting to interrogate the suspect in an effort to gain a damaging confession or admission is the last step taken by criminal investigators after perhaps many weeks or months of investigation.
If you find yourself in this situation, the early assistance of an experienced military defense lawyer is essential to presenting your best defense in court. Criminal charges in the military can be prosecuted at many levels depending on the severity of the allegations. Minor infractions may be handled by administrative means or through non-judicial punishment (NJP or Article 15) while more serious charges may be referred to a special or general court-martial. Assuming the allegations are serious enough to bring to court, the likely next step is preferral where an individual (usually a legal clerk or technician) swears to the charges before an officer authorized to administer oaths. You are entitled to receive a copy of the sworn charges.
What happens next depends on whether the government intends to refer the charges to a special or general court-martial. In the military, final charging and forum decisions are made by the Convening Authority (normally the commander of the unit or organization you are assigned to). The Convening Authority is usually not a lawyer but may have a judge advocate assigned to the staff to provide legal advice. Typically, if the commander is a Flag or General officer, they will have a staff judge advocate (SJA). Smaller commands may have a non-lawyer officer who has received some training as a collateral duty legal officer. In addition, the command may receive advice from the prosecutor (called a Trial Counsel) and various law enforcement agencies.
As you can see, the government has a wide array of resources at its disposal and the odds may seem stacked against you. The government, however, always has the burden of proving guilt beyond a reasonable doubt and there are other procedural and Constitutional safeguards you are entitled to. It is therefore essential that you have the assistance of counsel to assist you in defending your case. If you have been charged with a criminal offense in the military or know that you are under investigation, contact an experienced military defense lawyer to protect your rights.