One of the most common questions I’m asked in my capacity as a military defense attorney is one that defense lawyers, both military and civilian, have been answering in one way or another since time began:
“Should I talk with law enforcement? The police? The FBI? NCIS? CID? OSI?”
The short answer is NO. But the longer answer is a little more helpful.
You should always approach any interaction with any law enforcement agent (and anyone else who might become a witness against you) with this attitude: either (1) tell the truth, or (2) say nothing. The important takeaway here is that there is no option (3) where you tell a lie. Period. Lying to a law enforcement agent is always a terrible idea. Assume you will be caught lying, because one way or another, you very likely will.
In Texas, you are required under most circumstances to tell a police officer your true name and date of birth, and your true residence address. Beyond that, JUST SHUT UP.
Just shut up. Say it to yourself in your head right now: JUST SHUT UP.
If you are being investigated, anything you say will be used against you and cannot be used to help you. You have a right to remain silent, and not incriminate yourself. This is a Constitutional right, which means it is the law.
ANYTHING YOU SAY could be incriminating, even if you don’t think it’ll hurt you. ESPECIALLY if you don’t think it’ll hurt you. Even people who know they are completely innocent will often say things, especially in anger, that will be twisted around and used against them later. So JUST SHUT UP.
If you’re a military member, you are required to physically go where you’re ordered to go. For example, if your commander says, “Go to the CID/NCIS/OSI office for an interview,” you have to physically go. Failure to go to that interview is a violation of a lawful order, and will get you in more trouble. But NO ONE can order or require you to actually talk with anyone in law enforcement. NO ONE can make you give a statement about something you’re being investigated for. You have the right to remain silent. Tell them you’re exercising your right to remain silent, and then JUST SHUT UP.
There will always be a “nice cop” or a “cool cop” who wants to be your “friend” and help you out. Really? These nice guys with the guns on their belts and the shiny badges want to do you a favor? Do you seriously think they want to help you? Believe me, they don’t. So JUST SHUT UP.
When you shut up, DO IT PROPERLY. “I want a lawyer. I don’t want to answer any questions.” Period. It’s very easy. You must SAY it, and then you should DO it. If military law enforcement agents are doing things correctly, they will advise you what they suspect you of, and provide you a written form that you can sign to waive or exercise your rights. It is perfectly okay to check the box that says “I want to speak to a lawyer” and/or “I do NOT wish to make a statement.” Any other option is foolish. Exercise your rights and remember that “silent” means SILENT. Don’t talk about the weather, or football, or anything. JUST SHUT UP.
They will continue to ask you questions, of course, even though you’ve said you want a lawyer and then closed your mouth. They will say things to get you to talk, about anything (like the weather, or football). They just want you relaxed and chatty. KEEP YOUR HEAD. If you slip up and answer ANY QUESTION, immediately re-invoke your right to remain silent. Whenever sounds are coming out of your mouth, you are waiving, or giving up, your right to remain silent. It is law enforcement’s job to get you to do exactly that. They love to do that, and they tend to be very good at it. They laugh later about the stupid people who they arrest and then talk into admitting all kinds of things. How do you protect yourself? JUST SHUT UP.
I have had people come in to consult with me during an investigation or after they’ve been charged, and tell me, “Oh, the police/CID/NCIS/OSI agent said this and that.” When I ask, “Why were you talking to a police officer/CID/NCIS/OSI agent?” they might tell me “Oh, I didn’t say anything about the case.”
Yes. You did.
So, you really need to JUST SHUT UP. Since anything you say will be used against you in a court or court-martial, that fact needs to be your one and only concern. Be thinking to yourself: “What have I said or done that the Government is going to use to convict me and send me to prison?”
If you ever find yourself accused of an offense, you have ONE JOB: do not help the Government convict you. This means keeping your mouth shut. Remember that the charge is NOT the issue; the conviction is. So don’t fight, wheedle, whine, or beg to the police, agents, or your commanders about the charge. Police and agents don’t have any authority to determine what you get charged with in the first place.
JUST SHUT UP. And call a military or civilian defense lawyer immediately.