If you are a military member and you get into trouble, you are generally entitled to be represented by an active duty JAG as your defense attorney. You are also allowed to hire a civilian defense counsel. If you hire a civilian defense counsel, you generally have the option of either keeping your active duty defense counsel on your defense team or dismissing them.
An active duty defense counsel gets assigned to help you through a court-martial, Article 15 (non-judicial punishment), or involuntary separation action. An active duty defense counsel may also represent you on smaller adverse actions, including a poor performance report, a letter of reprimand, a promotion delay action, and an administrative demotion action, to name just a few.
So why might a military member want to hire a civilian defense counsel? As a JAG, active duty defense attorneys are likely smart and hardworking (but there are exceptions). More importantly, however, like all attorneys they may be very experienced, very inexperienced, or anywhere in-between. If you do your research and hire a civilian with a track record, then you know you have experience working for you. And that helps maximize your chances. Further, just like with a public defender, your active duty defense attorney works with the same prosecutors and the same command chain at your base all the time. This means that they sometimes have to pick and choose when and for which clients they can be super aggressive for - because they do need to maintain a good relationship with commanders and prosecutors. A civilian defense attorney has no such issues.
Remember, by adding a civilian defense counsel in a UCMJ or other adverse action, then you still have the choice of keeping your active duty JAG as well. This creates a defense team who can work together. This can have loads of benefits – and not just double the resources, double the manpower, and double brainpower. You get diverse attorneys who can edit each other’s work and ideas, which often leads to a better product. Think O.J. Plus, your active duty JAG may have deeper insights into some specific local tendencies and personalities, while your civilian defense counsel has more litigation and courtroom experience.
If you are ever in a situation where your military career or even your life or liberty are at stake, you may want to speak to a civilian defense counsel before going it alone with your military defense counsel. The consult is generally free and it should lay out your options so at least you make an informed decision.
Imagine this – you are suspected of a crime in the military and things are headed for an Article 15 or even a court-martial. It happens to people all the time. A urinalysis test come back hot. A person reports being the victim of a sexual assault. Money goes missing from the office snack fund. For certain cases, like a DUI, the investigation might start and stop with you right there. But for most cases, things start rolling well before the subject is even aware anything is going on.
How does a criminal investigation start? Usually a complaint is made to the local CID / NCIS / OSI. Perhaps that is an assault or theft victim voicing a complaint, perhaps it is the drug lab reporting a positive urine test. Once a case is opened, however, guess what – the accused is not immediately brought in for his or her side of the story. The investigators were not born yesterday. They know to get their ducks in a row before the big interrogation. They know they have a much better shot at a confession if they have the upper hand on knowing all the facts – and they already have the upper hand in knowing powerful interrogation techniques.
Do not underestimate this: no matter how they come across or what they say, the investigator is looking for a confession. That is how they get their performance bullets and high-fives. An interrogation ending in a denial or the subject “lawyering up” is a failure. A confession is a win. At least in general. And a confession or any kind of statement made at this stage of the game can be devastating for your defense case – a total admission can seal a conviction right there. Even small statements can seriously hurt your case. And this is whether you are truly guilty or truly innocent.
How do you protect yourself? If you ever find yourself in a situation where someone reads you your rights, always consider these points:
1. Silence. It’s golden. At least in most cases. While making an immediate statement might be the right call, that’s a rarity. You have the absolute right to keep your mouth shut – and every criminal defense attorney will tell you this is the best default advice. Come back to the cops later to make a statement after you talk to a lawyer if that makes sense.
2. Ask for a lawyer. By clearly and unequivocally stating “I want a lawyer” the investigators have to stop questioning you. It’s the key phrase to take off the pressure. Say those words and don’t second guess it, if you want a chance to think and get expert advice before locking yourself in.
3. Investigators manipulate their subjects. They start off by being buddy-buddy with you. They talk about the game. Or the news. Or whatever other small chit chat for a while before then slipping in “these rights advisements are just a technicality but we need to read them, you have the right to remain silent . . .” and then they get back to small talk. They want their subjects to get used to talking and feel comfortable. They want to pretend they are your friend. You don’t notice it’s an interrogation most times. They eventually work in how much evidence exists against you and how they are ready to go to bat for you with the command if you cooperate, and if you don’t cooperate you are toast. Well, nothing could be further from the truth in most situations – confessions and admissions are what toasts most suspects.
4. Investigators can even lie to you. They can tell you they have your DNA, or a video of you doing it, or 100 witnesses against you, even though every single line is a bald-faced lie. Their trick is to make their subject feel so helpless that the only rational choice for the subject in his or her mind is to plead for mercy with the investigator and confess all their sins. These techniques are so powerful that they have been proven to coerce false confessions from totally innocent people. One of the more famous examples was the Central Park Five.
5. Stand up for yourself. In these situations, a subject is at an extreme informational disadvantage. It’s unfair. Stand up for yourself and ask for a lawyer so that you can get on an even playing field. Maybe making a statement is the best option. Maybe you have nothing to hide. You don’t lose anything by asking for a lawyer, which will result in you getting all the facts about what is going on. Then, if it makes sense, provide your statement under fair conditions to the investigators. Or not, and invoke your right to remain silent if a statement would hurt you.
First Amendment to the Constitution --
"No person shall be . . . compelled in any criminal case to be a witness against himself."
Article 31, U.C.M.J. --
"(a) No person subject to this chapter may compel any person to incriminate himself or to answer any questions the answer to which may tend to incriminate him.
(b) No person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.
(c) No person subject to this chapter may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence in not material to the issue and may tend to degrade him.
(d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial."