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Presumption of innocence: Does it still apply in the military justice system and how can you protect yourself against allegations of misconduct?

A role-playing soldier after being 'arrested' by Military Police Soldiers during training, July 13, 2016, on Joint Base Elmendorf-Richardson, Alaska. (U.S. Air Force photo/Justin Connaher)
February 09, 2022

All opinion articles are the opinion of the author and not necessarily of American Military News. If you are interested in submitting an Op-Ed, please email [email protected]

Due to the uniquely coercive factors present in the military, many times, those who are accused of misconduct feel pressured to speak up to give their side of the story. This belief has become far more prevalent in the age of increased and excessive prosecutions of allegations of military sexual assaults, because as soon as an allegation is brought forward, the subject of the investigation is flagged and stigmatized.

Military law enforcement personnel have been trained not to confront an alleged victim when the information provided is inconsistent with other evidence, when the victim declines to provide requested information, or for any other reason. While training has changed several times over the past decade, it has gone from completely impartial investigations to “believe the victim at all costs” to the current method, which is to generally accept the victim’s story and only seek clarification—not confrontation. While some argue this is middle ground, it has eroded the existence of an accused’s presumption of innocence. 

The story provided by the victim controls the direction of the investigation, which in turn causes bias in deciding whether to refer the case to trial. With the advent of Special Victims’ Counsel and their increased authority to shield their clients from questions, law enforcement agents are handicapped in their ability to seek the truth—resulting in a presumption of guilt in many cases.

Because of this, service members accused of crimes have developed a sense that they need to get out ahead of an investigation by speaking freely with military investigators, their leadership, their peers, and so forth. This is especially dangerous for anyone who has not sought legal advice before discussing the allegations.

In some cases, the statements provided can be later suppressed, but there are specific requirements that must be met for this to occur. This is why it is vital for service members to understand their Article 31 rights, which are similar to Miranda rights but go further in that they require the accused to be notified of the specific charge and allegation for which he or she is suspected.

These rights are triggered when the individual asking the questions suspects the service member of committing any misconduct punishable by the UCMJ. Statements made in response to questioning when the accused is not properly advised of his or her rights may be suppressed; however, there are also a number of exceptions, which is precisely why someone accused of a crime needs to seek legal advice early and often. 

If you are accused of a crime, it may feel like you are alone and that you should tell your superiors or investigators everything right away to gain their support; but it’s important to remember that these investigators are rarely your friend, and if you volunteer information, your statements likely cannot be suppressed.

Additionally, speaking about the accusations to others can lead to dire consequences purely because everyone remembers what is said differently and will provide statements that then create the impression that you are changing your story and being deceitful. If investigators did not have enough to pursue court-martial charges before, they may now.

The same applies to voluntarily consenting to searches and turning over evidence such as your cell phone in an effort to disprove something without regard to how this could open you up to attack.    

Ultimately, while no service member expects to ever face an investigation, knowing your rights can be the difference between facing disciplinary action, whether that be administrative or a court-martial, and having an investigation closed without action. More importantly, however, it can mean the difference between being convicted of a crime that will follow you for life and maintaining your innocence.

If you end up in a situation where you are being accused of something, know that you have the right to speak to an attorney before providing a statement, consenting to searches, or providing evidence, and regardless of what an investigator may say, doing so will never foreclose the opportunity for you to provide your side of the story later.     

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As a Senior Associate at Tully Rinckey PLLC, Allison focuses her practice on all aspects of military and national security law. She represents clients at all levels of military criminal law from investigations to adverse actions and separation boards all the way to courts-martial and appeals to the service courts and the Court of Appeals for the Armed Forces. She also handles a variety of administrative actions such as discharge upgrades, corrections to military records, line of duty investigations, medical disability processing, ROTC disenrollment actions, obtaining/appealing VA benefits decisions, and contesting debt actions with DFAS. She can be reached at [email protected] or at (716) 439-4700.