When I was an Army defense counsel I had a wall in my office covered with pirate flags. Each pirate flag represented a full acquittal in a court-martial. Then I had a stack of files with green covers on a shelf. Each file was the full verbatim transcript of a trial where a Soldier had been convicted of one or more charge (sometimes very minor ones). In the U.S. military, full verbatim transcripts are only made for trials that have a conviction. If the trial results in an acquittal, there is no real transcript. Part of our job as military defense lawyers was to give what were called “rights advisals.” These were essentially counseling sessions with Soldiers under investigation (but who hadn’t been charged) who wanted to know what their rights were. In many cases, they wanted to give a statement to CID (Army Criminal Investigative Division) or the command and I would explain to them why that was a bad idea. I would point to the pirate flags on my wall and explain what they were and then point to the stack of transcripts and explain what they were. “The guys with the pirate flags? They didn’t give a statement. The guys with the transcripts? They gave a statement.” This wasn’t an exaggeration. Much of the time the difference between an acquittal and a conviction is whether you give a statement.
You absolutely have the right to not give a statement to any law enforcement. This right is guaranteed by the Fifth Amendment of the United States Constitution (see the Supreme Court case of *Miranda v. Arizona*). This also includes your command when they are questioning you about something they suspect you of. In the U.S. military this right to remain silent is further guaranteed by Article 31 of the UCMJ (Uniform Code of Military Justice). If you are being investigated (or in any way suspect that you might be under investigation), ALWAYS claim this right and ask to speak to a lawyer.
In the vast majority of cases, when you are interviewed by CID or other law enforcement, they are not looking for the truth. They are looking for a conviction. They are allowed to lie to you, manipulate you and do everything possible to give a statement that incriminates you in some way. Do not give them the satisfaction. Ask for a lawyer. They will begin with small talk designed to make you comfortable. Don’t let them. Immediately ask for a lawyer and refuse to say anything. When you are interviewed by CID, OSI or NCIS, they will put you in an interrogation room with bare walls and multiple cameras. This is designed to intimidate you and make you uncomfortable. Meanwhile the alleged victim will be interviewed in a room with colorful walls, couches, plants and so forth. She will be asked questions designed not to trip her up or give anything that can be used to impeach (show how she’s a liar) at trial. It is not a fair fight. You can only equalize the battle (and make no mistake, it is a battle and no one there is on your side) by not giving a statement and asking to see a good lawyer.
Don’t get me wrong, there may be a time to tell your side of the story. Sometimes at trial it will be worth taking the stand and telling your side of the story. But let that be at trial, when you have your defense lawyer with you and you are prepared for cross-examination and you know what the real prosecution case is against you. Then and only then might it be the right time to tell your side of the story. Whether you should do this is very case dependent (with many factors involved) and you should consult closely with your lawyer to determine whether to take the stand.
