Rights of Service Members During CID NCIS OSI or CGIS Investigations

Hello, my name is Michael Waddington. I am a military defense lawyer. I’ve been practicing law for 25 years. In this video, I’m going to answer some of the most commonly asked questions that we get through consultations on YouTube, on Google in NI. The first commonly asked question is this.

Do I have to talk to NCIS, CD, or OSI if I’m not under arrest? And the answer is no. Being not under arrest, that’s what they’re going to tell you when you go in there. Hey, you’re not under arrest. That does not mean that you’re required to talk.

In the military, investigators can interview you as a witness, a subject, or a suspect without arresting you. None of these labels force you to speak. You always have the right to remain silent and ask for a lawyer. People get into trouble because they think that I’m not under arrest. I’m not a suspect.

They think that they have to cooperate or that cooperating and running their mouth is mandatory or going to help them. In reality, it rarely ever helps you. Most cases where there are convictions, it’s based on the words that come out of the person’s mouth that is suspected of a crime. Next question. What does it mean when my command says, “Oh, this is just informal.”

Usually, it means there’s no paperwork yet and it’s not in the hands of CID, OSI, or NCIS. It does not mean that there’s no risk and that you’re not going to get into trouble. Informal conversations often become formal investigations later. Statements made informally are still documented. They’re shared.

They’re put in the file, and they’re used against you. So, anything you say to an investigator, whether it’s formal or informal, whether it’s military law enforcement or just someone in your command, if you’re saying it, it can be used against you to either prosecute you or at a board or non-judicial punishment. So, the bottom line is if you wouldn’t say it in a recorded interview, then you shouldn’t just say it because someone said, “Oh, this is informal.” Talk to a lawyer if you have any questions about this. It’s important that you get solid legal advice on this topic.

Next question. Can I say no to a command directed interview? Absolutely. You can be ordered to show up. You can be ordered to quote meet with the investigators, but you cannot be ordered to answer questions that could incriminate you.

You still have the right to remain silent and to ask for a lawyer even if it is just to command direct investigation. What you can do is reach out to a lawyer and the lawyer can say, “Hey, investigator, I represent this person. Give me the questions you’re going to ask. I’m going to discuss it with my client and we’re going to decide whether or not we’re going to answer your questions.” And then the lawyer can help you answer the questions or advise you on whether or not you should just stop talking.

A lot of times, better idea to just stop talking. Another question, we get this all the time. What happens if I ask for a lawyer? Does it make me look suspicious? And what if I ask for a lawyer too early?

First of all, nothing bad is going to happen. The earlier you get a lawyer, the better it is for you if you are under investigation or a possible suspect. There’s no penalty for asking for a lawyer or for asking for one early. There is a penalty if you make bad decisions or make decisions that could later incriminate you. Whether it’s giving up your phone, agreeing to searches, or just talking.

If you’re being questioned, then they think you did something. They’re not questioning you out of the blue because they think you’re innocent. Get that through your head. A lot of people think, “Oh, they’re just asking questions.” They’re asking them for a reason.

It’s because they think you’re guilty of a crime and they need evidence to support what they think you’re guilty of. What’s the best evidence out there? The words that come out of your mouth. So, be quiet. Ask for a lawyer.

When you do ask for a lawyer, investigators expect it. It actually makes your job easier in some ways because they don’t have to interview you. They just write down suspect requested a lawyer. Commands expected. The only people harmed by delaying a lawyer are the ones who talk themselves into problems.

Early is always better than too late or never. Do I look suspicious if I stay silent? The answer is no. And if you do, who cares? They already think you did something.

So you remaining silent is better than you opening your mouth and proving that you did it or giving them more suspicions. Silence is a constitutional right. It’s not a red flag. Investigators may not like it, but they are trained to expect it. What actually raises suspicion is inconsistent talking, changing stories, overexlaining.

When you start flapping your gums, the investigators sit back, get their popcorn out, and just let you hang yourself. Silence protects you. Your explanations, although you think you’re talking your way out of it, it basically creates evidence. Evidence that they’re going to use against you to convict you. Can my chain of command order me to give a statement?

The answer is no. Just like the command direct investigation, you can be ordered to appear whether at NCIS, CID, OSI, or command direct investigation, but they cannot order you to incriminate yourself. It’s as simple as saying, “You know what? I’d like to talk to a lawyer before I answer any questions. If you don’t mind, thank you.”

And stop talking. If your answers could expose you to punishment, you have the right to remain silent. That does not disappear simply because the questions come from the command, from your direct supervisor, or from law enforcement. It applies the same to anyone who’s asking you a question that could incriminate you. Here’s a tricky one that military law enforcement love to play with.

They tell you, “Hey, you’re not a subject. You’re just a witness. You’re okay to talk with me.” And so then the question is, what’s the difference between a witness and a subject? A witness is someone investigators think has information.

A subject or suspect is someone that they are evaluating for wrongdoing. The problem is this. Witnesses often become suspects and subjects. It happens like that. And the statements don’t get erased when that happens.

So, you go in there and run your mouth and you’re only a witness. You quickly talk yourself into being a suspect or a subject. And then anything you say can and will be used against you. That’s why even witnesses should be careful. If there’s anything that they’re saying that could incriminate them, they should seek the advice of a lawyer.

If you can’t afford a lawyer, a civilian lawyer, go down to the JAG, go to TDS, go to the DSO, or go to the ADC office. They do have lawyers on standby that can help you if you have any questions about this. Here’s another one that people get upset about, but it’s the oldest trick in the book. Can investigators lie to me? Yes, of course they can.

Investigators are legally allowed to misrepresent evidence. They can make up statements. They can say that they have DNA fingerprints. They can make up what others allegedly said about you. They can lie to your face.

They can tell you that they already have access to your phone, to your bank records, to your emails, even if they’re absolutely lying. The only person that is required to be truthful in that room is you. Now, that imbalance matters, especially when you have multiple agents lying with a very carefully thoughtout plan of deception. It often gets people to say things that incriminate themselves. It gets people to confess and even gets people to falsely confess.

So again, if you’re talking to an investigator, they think you probably did something. So better off getting a lawyer to make sure that you don’t get yourself in trouble than going in there and talking and playing their games because there’s a major power imbalance when you’re sitting in that room and you’re being interrogated. And the power imbalance is in the favor of the investigators, not you. Do you ever wonder why they have your back against the wall in the corner and the two agents usually have you pinned in? They’re filming you and they have a two-way mirror watching you and recording you.

They’re not doing that for fun. They’re doing that because they’re hoping that you start making statements that incriminate yourself. When talking to law enforcement, does cooperating actually help? Yeah, it can help sometimes, but not automatically. If you don’t have a lawyer there making sure that you get promises of leniency for your cooperation in writing, then you could be walking into an ambush and basically confessing thinking that you’re being helpful.

Cooperation without strategy, cooperation without a lawyer creates many, many problems. Talking to law enforcement and running your mouth doesn’t guarantee leniency. As a matter of fact, it often guarantees nothing other than you’re going to get convicted. It guarantees evidence to be used against you. So whether cooperation helps or not depends on timing, on facts, and before you talk, you’re holding a lot of cards.

If you have a lawyer that helps you, you’re holding cards. You have leverage. Once you run your mouth and blurt out all the incriminating facts, you have no leverage. And blind cooperation, by the way, helps the government more than you in every single case. OK?

So you think you’re smart and you’re going to go into law enforcement. You’re going to talk to them quote off the record. What happens? What happens if you talk to them off the record? Well, first of all, there’s no such thing.

There is no off the record with investigators. I’m laughing because I hear this all the time. Like, hey, it was off the record. I talked to him to the investigator off the record. They didn’t record me.

They probably did. Number one. Number two, they probably went out there and took notes and wrote down whatever you supposedly said. If you say it, it can be documented. It can be summarized.

It can be testified to later, testified to against you. So even casual conversations can end up in reports. If you want something protected, talk to your lawyer, not the investigator. Another question that is very common. Can NCIS OSI C my phone without a warrant?

The answer is usually no, but there are exceptions. And that’s why you need a lawyer because you don’t know the exceptions and you’re gonna end up getting into trouble. Consent is the biggest exception. If you unlock your phone or agree to a search, you’ve waved your protections. They can search it.

They can search for everything. All your pictures, all your emails, even if they have nothing to do with why you’re originally being brought in there, you’ve waved your rights. Once access is granted, they can find far more than you expect. Trust me, I’ve had many clients who go in for a somewhat minor offense and walk out of there getting court-martialed for a variety of other offenses. Why is that?

Well, because your phone nowadays is a forensic evidence factory. It’s collecting everything you’ve done, every message you sent, even if you think you’ve deleted it, it can probably be recovered. You’re not smarter than the law enforcement investigators. You’re not smarter than their software, especially with AI. AI nowadays can recover a tremendous amount from people’s phones that they thought they deleted.

They can do analysis that pieces together pieces that even two years ago we couldn’t have had access to. And guess what? They piece them together and they bring them to court and they use them against you. Consent is something you shouldn’t do unless you talk to a lawyer. They’re not asking you to consent to look at your phone for the fun of it.

They’re doing it because they think you’re guilty of a crime. They’re looking at it to collect evidence so they can use it against you to prove that you’re guilty of the crime. It’s as simple as that. I mean, I I got to be blunt. I get so many of these questions all the time that I’m like, I don’t know if the people nowadays are more naive or they just don’t understand that they can be under investigation.

But so many people that are good soldiers, sailors, airmen, marines, they end up in these situations and they don’t understand how hard the law enforcement can come after them and how ruthlessly the prosecutor will come after them to prove they’re guilty of a crime. Another question, what does probable cause even mean in the military? What it means is this. It’s a low standard. It means there’s a reasonable belief that evidence of misconduct exists.

It’s a reasonable belief. OK? It’s almost kind of like a guess based on a little bit of information. It does not mean guilt. But once probable cause exists, searches, seizures, and charges become possible.

That’s why early statements matter so much. Just a few things you say out of your mouth can be enough to get a search warrant authorized, to get them to seize your phone, your computers, and to charge you with a crime. So the more you talk, the better it is for government. You’re not going to talk your way out of charges. Can my commander see my texts?

Well, not automatically, and it depends, right? If investigators obtain your text lawfully, command may eventually see summaries or excerpts of your text. People assume that texts stay private. They often become the centerpiece of the case. Now, that applies to a privately owned phone.

If it is a government phone, and you may be wondering who in the world would be doing anything illegal on a government phone, you would be surprised. A lot of people use their government phones and computers to engage in all sorts of misconduct that it can be shown your command and you don’t own privacy rights to that in most cases. So, whatever you do on a government phone or computer, assume that anyone can see it and it will be seen. What if I already gave a statement to C, NCIS, CEIS, or OSI? Well, it really depends on what was said.

You’re not necessarily doomed, but the situation just became very complicated. Statements can’t be erased. They can sometimes be explained, contextualized, challenged, maybe maybe every once in a while suppressed. But what matters now is what you say next, not what you wish you hadn’t said before. So that’s why when you get a lawyer in there, a lot of times we’re doing damage control.

Just like you bring someone to to the ER that has gunshot wounds. The lawyer is kind of like a doctor. We look at what we have. We can triage you and try to save your life the best we can. But it’s best to avoid ending up in a situation like that to begin with.

And providing them law enforcement with a lot of statements and running your mouth and consenting, it only makes your situation worse even if you’re innocent. So, another question is, well, if I made a statement to law enforcement in the military, can I go back and can I clarify it and can I explain it? They would love nothing more than for you to come back in and change your statement. First of all, it’s going to catch you another charge probably of false official statement, which carries in some cases five years, obstruction of justice, other various crimes. Even if you go back in and clarify, which you shouldn’t.

You should shut up and get a lawyer, that doesn’t mean that the original statements erased. What the investigators will do is they’ll compare version A with version B, sometimes C, sometimes D. Yes, that happens. And every change raises credibility questions. Every change makes your situation worse, your legal predicament much worse.

So, that’s why follow-up statements should never be given casually. And this is where you should probably get a lawyer to discuss it and to advise you on what to do next. You don’t have to have a civilian lawyer. You can go to the ADC, the DSO, and the Navy and Marine Corps. You can go down to the TDS office.

If you have questions about this, seek legal advice, whether military or civilian, but don’t just go on your own. And for God’s sake, don’t go in and start looking at Chad GPT. That leads into another question. Are my AI searches protected? The answer is absolutely not.

I’ve seen multiple cases this year where law enforcement accesses your searches in AI, whether it’s ChatGPT, Gemini, Grok, Claude, whatever you’re using, whatever you’re putting in there gives the AI and law enforcement, if they can access those records, insight into your brain. So, if you’re asking how to delete messages or how old someone has to be to consent or how to hide evidence or something like that and they recover that, that is absolutely admissible as evidence of guilt or consciousness of guilt. And it’s devastating, devastating to someone when they have evidence used against them that comes from their own searches, their own their own thought process, from their own mind, especially in cases that involve specific intent.

Probably the most common question we get asked is this. How long do military investigations usually take? Now, that’s a complicated question because it depends, right? They take longer than you expect. They don’t care if you’re about to retire.

They don’t care if your PCS or ETSs is coming up in three months. They don’t care. They’re just going to extend you on active duty. And yes, they can do that. The typical investigation if it’s being done at a felony level by OSI, NCIS, CGIS, or CID takes anywhere from six months to a year.

Some take longer. A year is not unusual. Now, instead of calling your lawyer every day wondering, why is this taking so long? Well, it’s taking so long for various reasons, and we’ll answer that in a different video, but it doesn’t matter. Speed is not a priority for them.

They’re going to grind along doing their due diligence, interviewing everyone they can find, collecting whatever they they can, sending things off to the computer lab, the forensics lab, the DNA lab, whatever lab they have, and building character evidence, bad character evidence against you. So that takes time. They’re in no hurry. What’s important is in the meantime, you have legal representation. Whether it’s a free military lawyer or a civilian lawyer, you need someone there to guide you because most people when they don’t have a lawyer get advising and guiding them make mistakes.

They talk to witnesses. They say things that can be used against them. They try to delete evidence which you should not be doing. They do things that go to build the case against them. If you have questions about the status of the investigation, go through a lawyer.

Do not do it yourself. Don’t walk into C and ask them, “Hey, what’s going on? I’m willing to talk.” Or it’s probably going to hurt you in the long run. Another question that ties into investigations dragging on for 6 months to a year.

Why does it take so long? Why does a military law enforcement investigation take that long? Well, I’m going to tell you on the civilian side, they often take much longer. I’ve seen federal cases go on for years before they do anything with it. But think about it.

Investigators in the military juggle a lot of cases. Commands are involved. Jags are involved. Commands delay decisions. Witnesses move.

They PCS. They get out and reports slowly move through these channels. The labs are backlogged. Whether it’s the digital forensic lab, the DNA lab, the labs that look at fingerprints, all these labs are backlogged. And that’s just not in the military.

It’s across the board, both on the civilian side and military. Delay doesn’t mean that nothing is happening. They’re not going to give you updates through your lawyer or individually. you know, hey, here’s what’s going on this week or next week. You’re not entitled to that.

They’re not going to tell you. They keep it locked down. They keep it secret. What you can do and should do while it’s dragging on. Instead of wondering why, be building your defense, locking down your timelines, securing evidence, locking down witnesses, talking to people, start to build your case, assuming that something will happen.

Don’t sit around hoping for the best, hoping that they’re going to drop in and they’re just going to determine that you’re an innocent guy and then you’re going to go about your business. That is not a good idea because a year could go by and a lot of evidence, a lot of witnesses, a lot of details could have gone away, including text messages, video evidence, things that can be used to help you, especially if you’re innocent or you’re being accused of things that are grossly exaggerated or not accurate. Stop asking why. start focusing on how to build a case in the event that this thing does move forward. Another question, can I be investigated without being told?

A lot of people call us like, I don’t know if I’m being investigated. Uh, no one has come and told me yet. Well, that’s part of the game they play. They might not tell you you’re being investigated until they bring you in secretly to be interrogated 4 months into the investigation. Yes, you can be investigated in the military without being told.

Preliminary inquiries and evidence collection can occur before you’re notified. As a matter of fact, they try to gather as much as they can before they go to you because then they have a lot of the evidence together. So, when they bring you in, they know what questions to ask, where to probe, how to lie to you, how to trick you, and how to get you cornered and into a confession. while it’s going on. If you have any idea or any thought that an investigation may be going on into you, you need to reach out and get a lawyer, whether the free military lawyer or hiring a civilian lawyer, because you don’t want the first time that you talked a lawyer be after you walk out of C or NCIS or OSI after you gave them your phone, admitted to a bunch of misconduct, or got stuck in a 8-hour interrogation followed by a polygraph.

By that point, you’re making our job as defense lawyers much more difficult. I’d rather have someone who talks to us beforehand. We let law enforcement know, hey, this guy’s represented. He’s not talking to you. He’s going to do the fingerprints.

He’ll give you the DNA. He’ll let you take a photograph, but that’s it. You’re not talking to him. You want to talk to him, you talk to me first. That’s the way it should be because otherwise you’re going in there and you’re walking in to a lion’s den.

You’re probably not going to be walking out of there feeling good about what’s going on because you’re probably going to make statements. You’re probably going to make some mistakes. You’re probably going to say something, do something that’s going to then be used against you. You want a piece of mind, get a lawyer, whether a military lawyer, a free one, or a civilian one. But get a lawyer before you get called into C.

And generally, you know, if you’re being investigated because you’re going to hear rumors, people are going to start talking. You’re going to get this weird suspicion that you’re being investigated. Get your head out of the sand and if you think you’re being investigated, do something about it. What happens after my name is flagged. Now, not all the branches call it flagged, but some call it legal hold.

But basically what that means is that your career is put on hold. It can freeze promotions, schools, favorable actions, transferring of stations. It can stop you from getting out of the military even if your time’s up. Being flagged or put on legal hold, it does not mean guilt, but it can have serious career effects. Flags often stay in place until investigations conclude, which can take months to years.

So, you could be in this limbo for a long time, even if in the end, no charges are filed. It’s going to look bad because they’re going to look at your paperwork when you come up for a promotion, assuming you haven’t been charged, and they’re going to wonder why you’re stuck at a duty station for three years, haven’t been promoted, haven’t been allowed to go to schools, and all of your evaluation reports are mediocre to poor simply because you’re under investigation, even if you don’t get charged. So, understand that being put under legal hold or flagged can hurt you in the long run. And a lot of people panic and they make mistakes like talking, giving up information, or committing more crimes.

Will my command know everything I tell investigators? The short answer is eventually yes. If you tell them anything incriminating, for sure yes. Not word for word necessarily, but summaries, findings, often these skewed biased conclusions that military law enforcement like to make. They’re going to take the facts and kind of twist them to make you look probably worse than you are.

Even if you’re innocent, they’ll twist it in a way that makes you look guilty and then that is what ends up going to your command. Often a very biased, cynical, law enforcement friendly version of the events, not one that makes you look good. It’s always looking at the bad stuff. Assume what you say could influence command decisions later. Ask for a lawyer.

Don’t go through this alone. A lawyer basically acts as a firewall or as your bodyguard or protection between you, investigators, and your command. If you do everything through them, it puts you in the best possible position.