WHAT TO EXPECT WHEN YOU ARE UNDER INVESTIGATION
At Bilecki Law Group,We believe every service member has earned their right to an aggressive defense on their day in court. We specialize in taking the fight to the prosecution and winning cases that others said were unwinnable.
What to expect when you’re under investigation, next on “Off The Record.” You may be under investigation under the military and you’re wondering what’s gonna happen next?
- The First Thing That Happens
- The Interrogation Room
- Common Tactics Interrogators Use
- When You Should Speak To Law Enforcement
- Your Right As A Military Member
- Don’t Say Anything
- When It’s Time To Talk
- How Long Your Case Can Last
- Even If The Case Seems Slow, Investigators Are Working On it
- Law Enforcement Will Try To Get Your Phone and Talk To Your Family
- You Are Guilty Until Proven Innocent
The First Thing That Happens
Well, the first thing is you gotta know is whether you’re under investigation or not.
If You Are In The Army
The next step, if you’re in the army, there’s something called a Flag. You already know what a Flag is, but it suspends all favorable action against you. The code of your Flag is gonna be dependent on what type of an investigation it is. But it’s gonna essentially stop you from PCSing [SP], stop you from taking leave. You’re gonna be flagged from taking any additional favorable actions.
For Those Stationed in Korea
If you’re stationed in Korea, they may do what’s called an IFSTE, which is an involuntary foreign service tour extension, which means if you’re about to hit your DEROS date, you’re gonna be extended or you can be extended in Korea, even if you don’t want to be. You may lose your PCS orders. You may just be stuck in Korea or even stuck in Japan on an IFSTE.
If You Are In The Navy and Marine Corps
In the other services, the Navy, the Marine Corps, they call it a legal hold. It’s essentially the same thing but the command is gonna stop you and place you on legal hold from taking any favorable actions. That’s really the first step when you’re under investigation. The next piece is you’re typically gonna get called into OSI, CID, NCIS, or another law enforcement agency.
The Interrogation Room
Once you get called in, they’ll bring you into the room. This is typically what happens. They’ll have you sit, they’ll bring you into an interrogation room. The interrogation room is typically 5 feet by 10 feet or 6 feet by 8 feet. It’s a very small room, often has no windows, only one door to get in and out, and there’ll be a two-way mirror.
This room is designed to get you to confess in the exact same way they design casinos out in Las Vegas without any caulks, without any windows. They want you to stay in there and kind of forget where you are. They design the interrogation rooms that way. So what’s gonna happen is they’re gonna bring you into the interrogation room, and often they’re gonna ICU [SP].
And by that, they’ll have you sit down and they’ll be watching you on a two-way, either through a one-way mirror or on a two-way recording. They’re gonna watch you. They’re gonna see if you make any statements, say, “Oh, my God, I can’t believe this is happening.” They’re gonna monitor everything that you do. This is an interrogation technique to try to isolate you and to try to get you to make a statement. It’s all part of a very systematic process.
From there, oftentimes, one or two agents are gonna come in. They’re gonna sit in the interrogation room with you. They’re gonna get very close to you, uncomfortably close to you, and they’re gonna call you by your first name. One is probably gonna be very friendly to you, very nice to you, say, he just wants to get your side of the story. While the other person often known as the bad cop, sits in the back of the room and just stares you down and is trying to intimidate you.
Common Tactics Interrogators Use
So they’ll talk with you, and then they are required to read you your rights. That’s the rights advisement form, which you have a right to know what the charges are against you and your right to remain silent. However, this doesn’t often happen right away. They may do what’s called rapport building such as, “Hey, where are you from? Are you from Tampa, Florida? “Oh, I’m from Tampa, too.” Often, that’s a lie.
They try to find things in common with you. “Oh, do you like the Buccaneers? I’m a Bucs fan, too. I’ve been a Bucs fan since 1977.” They may start lying and BSing you just to try to build rapport with you, to break down your…to make you think that they’re a friend of yours or that they want to help you out. Don’t buy into this, okay?
Once they do that rapport building with you, then they’ll show you the rights advisement form. Now, the rights advisement form, it’s gonna say what you are accused of. And they do this little trick, and if you’ve been through this you already know exactly what I’m talking about. There are two things on the top of the form.
One says accused and one says suspect. They will always line through the accused, and they’ll say, “Listen, John, listen, Mike, we’re not accusing you of anything here. You’re just a suspect, and we want to get your side of the story.” That’s what they say. It’s BS. You are absolutely being accused. You’ve been accused of a crime, otherwise, you wouldn’t be in there to begin with.
When You Should Speak To Law Enforcement
Then you have the opportunity to either speak to a lawyer, to remain silent, or speak with them. Now, every case is different, but in the vast majority of cases, we almost always recommend or advise to don’t make any statements to law enforcement, it’s too early.
First off, if you explain your story of innocence and tell them what actually happened if you’re not guilty of or didn’t commit the crime that they’re accusing you of, they’re not gonna believe you. They’re gonna come after you, bring another agent in, maybe use the Reid technique on you, and they’re not gonna believe you. And they could even charge you with a 107 violation, which is a false official statement.
So if you’re innocent and you want to tell your story of innocence, they’re not gonna believe you to begin with, and they’re gonna use that against you. They’re gonna twist your words. They’re going to do all sorts of things to try to get you to confess even to a crime you didn’t commit. There is often a no-win situation by speaking to law enforcement that early on.
In fact, if you have your story of innocence to tell, there will be a time and a place to do it, but that is not the time to do it. You’re on their territory, in their room, using their rules, and they don’t suspect you of being innocent. They suspect you of being guilty, otherwise, you wouldn’t be there to begin with.
Your Right As A Military Member
You have the absolute right to not say anything at all and to request an attorney to represent you. The moment you request an attorney, whether that’s TDS, the ADC’s office, or a civilian counsel, you don’t even have to tell them who it is, you just have to say, “I want to speak to an attorney.” They’re required to stop all interrogations of you.
Often then what we hear is, “Isn’t that gonna make me look guilty?” Well, the reality is they think you’re guilty already. Who cares how you look? I’d rather look guilty or be perceived to be guilty, and actually win the case at the end of the road than fall for their interrogation traps.
Don’t Say Anything
Your best bet is typically don’t say anything at all, bite your tongue, and they’ll try to bait you. They’ll even tell you, “Well, we can’t tell you what’s going on. We just want to get your side of the story. We don’t think you’re this monster that you’re being painted out to be.” They use all sorts of tricks and techniques that they’re trained on.
Understand that these are trained professional agents who are not representing your interests. Okay. So after that they may ICU again, once you request a lawyer, you may be sitting there for an hour, 2 hours, 3 hours, 5 hours, 10 hours. I’ve seen people sit all day waiting to break them. You need to just be strong and eventually, they will let you leave, your first sergeant, your platoon sergeant, someone will pick you up.
When It’s Time To Talk
That is the moment, if you don’t have counsel, whether it’s civilian counsel, whether it’s the TDS office, the ADC office, you need to talk to someone now, not tomorrow, not the next day. Talk to someone now to explain your situation and to figure out how to get out of that situation. After that occurs, you may be in a waiting game.
How Long Your Case Can Last
These cases can take a month, six months. I’ve had cases where my clients were under investigation for the better part of a year. And clients always call, “What’s going on with my case? What’s going on with my case? What’s happening?”
And the cases are very slow, which you have to understand is that NCIS, OSI, CID, they’re working on dozens, sometimes hundreds of cases, depending on where or what base you’re at or how busy of a jurisdiction it is. All they’re required to do is do one investigative activity every 30 days. So that means they may grab your file and make a phone call. That’s considered an investigative activity, and the case moves forward. And that may take 2, 3, 4, 5, 6, 7, 10 months.
Even If The Case Seems Slow, Investigators Are Working On it
But believe me, they’re working on the case and trying to find ways to find you guilty or to get you charged. All right. So you need to take this incredibly seriously because this process can be long. Understand that if you’re under investigation that this is a marathon and not a sprint, and you need to be able to endure that race to be able to go through the other side of it.
Law Enforcement Will Try To Get Your Phone…
Now, the next thing that law enforcement might try to do is they’re gonna try to get your phone. They’re gonna try to get your digital media. Why? So they can do what’s called a DFE or a digital forensic examination on it. What they’re almost always going to do is try to get your consent, because if you consent to it the scope of the search or the aperture of it is extraordinarily wide.
Let’s say you’re under investigation for sexual assault, and they get your consent to search your phone. They’re gonna search your phone and look through all of it, look through Tinder, look through your Instagram, look through any of your dating apps, look through your texts, your pictures.
And they will actually find people that you’ve dated before, send agents out to them and tell them that you’re a rapist or that you’re under investigation for sexual assault, and try to get more people to try to testify against you or to try to make allegations against you. Because on law enforcement side, it’s a lot easier if you have two or three victims as opposed to one. If they give you the option of consenting to a search, the best advice is to just say no.
They will oftentimes then have to go to a magistrate. They actually have to use the real procedure, actually do what they’re supposed to do to get a search authorization. And the difference between you giving a blanket consent to search, whether it’s your phone, your digital media, or anything digital, and what a magistrate is going to do is that a magistrate is going to very narrowly tailor that search, at least they’re supposed to, to evidence of that specific crime.
And that can make a massive difference in the investigation, because even if they exceed the scope, we may be able to suppress that later on down the road. But it’s much better if you just don’t give the consent to search, and let them do their job, and let them follow the procedures. Let them follow the actual constitution so they don’t run rough shot all over you.
…Then Talk To Your Family
The next thing that’s gonna happen or can happen is they’re gonna want to talk to your spouse, your loved ones, your brother, your sister, your platoon. So they’re gonna start peeling back the onion and start talking to all sorts of people in your family that it can be extraordinarily embarrassing to you. You have to understand that this is part of the process. The reality is being under investigation is going through hell and back.
You Are Guilty Until Proven Innocent
Oftentimes the chain of command is gonna believe you’re guilty. They’re gonna treat you differently. They’re gonna take you out of your job. There’s a lot of things they can do, but all of this is designed to break you down so that they can have a case and build a case against you. My advice is you’ve got to be strong, you’ve got to take this extraordinarily seriously.
And if you do the right things early on, oftentimes maybe you won’t be charged or maybe that your case can be unfounded or not. But if at the end of the day, whether it’s 1 month, 6 months, or 12 months, you may have charges preferred against you.