The Military Rules of Evidence (M.R.E.) do sometimes allow a servicemember’s silence to be admitted at a court-martial as evidence of an admission. Let’s say, for example, you are in the workplace one day with your coworkers and someone says out loud to you, “you sexually assaulted me yesterday!” If you say nothing to this accusation, this silence might be used against you later. The reason for this is because the circumstances of being accused of something so horrific in front of your work colleagues, when the accusation is completely false, would cause a reasonable person to verbalize a denial. By not verbalizing a denial in this circumstance, the silence might be used against you later as evidence under M.R.E. 304. However, it is important to know that “silence may [only] constitute an admission when it does not involve a reliance on the privilege against self-incrimination or related rights.” M.R.E. 304 (analysis). In other words, this does not mean that your decision to remain silent after you have been formally accused and are facing an investigation will be used against you later in a court-martial. In fact, if you are being investigated, I strongly recommend that you remain silent and ask for an attorney.
Recently, on 28 November 2016, the Court of Appeals for the Armed Forces (CAAF) has decided to review a decision made by the Army Court of Criminal Appeals (ACCA) with regard to admissions by silence. In United States v. Ahern, ACCA ruled that the silence of Lieutenant Colonel Ahern was admissible, even though he was under investigation for allegedly sexually assaulting his step-daughter, at the time he failed to speak. In this case, LTC Ahern’s step-daughter, who was working with investigators, sent LTC Ahern a text message stating that she was willing to lie about what he had done to her in the past, but that she needed to talk to him because people were on the way to speak with her about it. LTC Ahern failed to respond to the message. The ACCA ruled that this failure to respond could be admissible as an “admission by silence,” even though he was already under investigation. The ACCA ruled this way because LTC Ahern was not aware that an investigation had commenced against him and therefore his silence was a “reliable” admission. In other words, hearsay rules are in place to prohibit unreliable statements from coming in as evidence in a court-martial. However, because LTC Ahern was unaware of the investigation commencing against him, his silence was just as reliable as if there were no investigation in place. The CAAF is going to review this decision and hopefully provide some clarification regarding whether or not an accused must be aware that he has self incrimination rights at the time that he is silent for it to later be held against him. Court-martials are complicated. Evidence is complicated. The minute you feel you are being accused of a crime, you need to seek help from an experienced attorney. I have a huge amount of experience litigating at the court-martial and appellate level. Don’t hesitate to call and we can talk your situation over. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.