Remaining silent is not “lying by omission,” it is a constitutional right.
If you are suspected of committing an offense in the military, no matter how minor the offense is, invoke your right to remain silent if someone attempts to question you about your actions. Even if you did nothing wrong, stay silent!! Even if it is your direct supervisor asking you questions, remain silent! Then, immediately invoke your right to speak to an attorney. Seek out an experienced attorney and speak openly with that attorney. Together you can determine whether it is beneficial for you to speak to your supervisors or investigators regarding the offense you are suspected of committing. There is no doubt that it is difficult to remain silent, especially if you believe you have done nothing wrong. It is also difficult to remain silent when it is your supervisors or commanders asking you questions. It may feel like you are being evasive and it may make you appear guilty when you are not. However, once you waive your right to silence and speak out, your words cannot be taken back. Those words will most likely be turned against you and could be used in a future court-martial against you. Recently, on March 3, 2015, in United States v. McFadden, the Court of Appeals for the Armed Forces (CAAF) rendered a decision that involved an appellant’s right to remain silent. This Air Force case involved an Airman First Class (A1C) who was absent without leave (AWOL). She pled guilty to AWOL during her court-martial, but pled not guilty to the larger offense of desertion. To be guilty of desertion, the government must prove that when an accused went AWOL, the accused had no intent on ever returning to the military. In McFadden, the accused testified during her court-martial and stated that she did not have the intent to stay away from the Air Force permanently and therefore was not guilty of desertion. During her testimony, a panel member asked her about the fact that she invoked her right to silence when she was first questioned about whether she deserted the Air Force. The panel member specifically referred to her invoking her right to silence and asked her if she was aware of the concept of “lying by omission.” At this point in the court-martial, the defense counsel asked for a mistrial, but the military judge did not grant it. The military judge also did not excuse that panel member from the court-martial. The military judge instructed the court-martial panel that they cannot hold it against the accused that she invoked her right to silence. While CAAF in McFadden did not overturn the military judge’s decision not to grant a mistrial, two CAAF judges dissented in this case. In the dissent, the appellate judges made it clear that, in their opinion, the military judge absolutely had a responsibility to do more than just give a curative instruction to the members. These judges believed that the military judge did not do enough to protect A1C McFadden’s right to remain silent. These judges also remarked that the defense counsel could have also requested that the offending panel member be excused from the court-martial and the other members could have been questioned (voir dire) to determine if they had this same improper opinion. Anything can happen during a court-martial, if you or your loved one is heading in that direction, you need an experienced advocate by your side. You need an attorney who knows exactly what steps to take to ensure that your rights are protected and you are afforded a fair court-martial. The appellant in this case had every right to invoke her right to silence and she was smart to do so. After you invoke your right to silence, the next step you should take is to find an attorney with experience to represent you. I have that experience. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.