U.S. MILITARY INVESTIGATIONS: TYPES & PROCEDURES

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1 U.S. Military Investigations: Types & Procedures Background Materials U.S. MILITARY INVESTIGATIONS: TYPES & PROCEDURES [ NOTE TO INSTRUCTOR: The words below that appear in plain text also appear in the outline given to each seminar participant. Material appearing bracketed [ ] in bold text is suggested for use by instructors during the presentation or as additional background information for the instructor to assist in answering questions and obtaining a greater understanding of the topic. The bolded notes do not appear in the materials provided to seminar participants.] [SLIDE 1 Title] [SLIDE 2 Overview] I. INVESTIGATION DEFINITION, PURPOSES, AND PRINCIPLES [SLIDE 3 Definition] A. An investigation is a systematic examination into a matter to discover and record the facts. There are many types of military investigations, including criminal and administrative investigations. A military investigation should be authorized by law or regulation, follow established procedures, and be impartial. [SLIDE 4 Purposes] B. The primary purpose of an investigation is to provide facts to commanders, prosecutors, or others who will make decisions about the outcome of a matter. For example, an investigation can assist authorities to: 1. Determine whether a person should be disciplined or prosecuted for criminal conduct; 2. Determine whether a commander should take administrative action against a person; 3. Determine who is responsible for loss or damage to property; or 4. Prevent recurrence of an event. 1

2 Defense Institute of International Legal Studies C. Investigations can serve many purposes beyond the immediate subject matter or basis for the investigation. For example, investigations could provide facts that lead to: 1. Reevaluation of operational practices or standards; [SLIDE 5 Principles] 2. Redesign and improvement of material; 3. Modification or adoption of instructions, regulations, and procedures; or 4. Replies to inquiries concerning incidents of public interest. D. Some guiding principles apply to every investigation: 1. Prepare a plan. Every good investigation begins with an investigation plan. Before starting the investigation, the investigator should review appropriate procedures and prepare a plan for the investigation. This plan will be modified as the investigation proceeds. 2. Follow the rules. The investigator should review the law and regulations that apply to the conduct of the investigation, and comply with those guidelines. 3. Systematically search for the facts. The investigator should use available investigative tools to find all the facts related to the matter. Facts that tend to disprove something are as important as facts that tend to prove the matter. Promptly gathering, preserving, and analyzing the evidence can be key to future resolution of a matter. 4. Remain impartial. The role of the investigator is to discover the truth. 5. Keep thorough records. The report of investigation is an essential part of the investigation. This written report should include a summary of the facts, description of the evidence, procedures followed by the investigator, and the investigator s conclusions. a. The report of an investigation should be clear and unambiguous. b. The report should be advisory and designed to provide authorities with adequate information upon which to base decisions. c. Opinions in the reports are not final determinations or legal judgments. Recommendations in the report are not binding on government or reviewing authorities. 2

3 [SLIDE 6 Criminal Investigations] U.S. Military Investigations: Types & Procedures Background Materials II. CRIMINAL INVESTIGATIONS [ NOTE: U.S. Army Field Manual 19-10, Military Police Law and Order Operations, is a good source for practical information on U.S. military criminal investigations. FM is located on the Internet at (no official endorsement intended); anyone can access this website which contains a wealth of military and security information.] A. Criminal investigations are procedures to examine and inquire into allegations of crimes. In the U.S., criminal investigations are usually conducted by law enforcement authorities. [ NOTE: Distinguish from formal judicial-type investigations, such as a grand jury, a UCMJ Article 32 investigation, or, in many civil-law countries, the investigating magistrate.] 1. The U.S. military has jurisdiction to investigate any U.S. military member suspected of any crime. Military investigators often work with civilian police to investigate crimes involving military members that occur in civilian jurisdictions. Generally, the military may not investigate civilians suspected of a crime, unless the crime occurs on a military installation or involves military property. a. Serious crimes are investigated by a military criminal investigative agency. These agencies are the Army Criminal Investigative Division (CID), Air Force Office of Special Investigations (AFOSI), and Naval Criminal Investigative Service (NCIS). These agencies have investigators and technical resources to conduct complex criminal investigations. b. Minor crimes are usually investigated by military police. For minor crimes that occur within a unit, the commander may investigate the matter himself or appoint someone in the unit to investigate the matter. [ NOTE: Generally, the U.S. military considers minor crimes to be offenses with maximum confinement of one year or less.] c. At the conclusion of the investigation, the investigator prepares a report and forwards it to the commander for review and action. 3

4 Defense Institute of International Legal Studies 2. Investigators are accountable for their conduct. a. Military investigators must comply with the U.S. Constitution, military law, regulations, and procedures. When conducting an investigation in civilian jurisdictions, they may be bound by local laws. When U.S. military investigators conduct investigations outside of the U.S., the Status of Forces Agreement (SOFA) with the host state should define the jurisdiction and limitations of both U.S. and local investigators. b. Criminal suspects must be afforded fundamental human rights protections. (In the U.S., these are called due process protections.) [ NOTE: International Human Rights applicable to investigations. Keep in mind that U.S. due process terminology is somewhat different from fundamental human rights protections terminology in common use around the world. The United Nations Code of Conduct for Law Enforcement Officials, attached to these instructor notes, provides an example of international standards.] [SLIDE 7 Procedures] c. Failure to follow the law during the investigation will hinder or prevent prosecution of the suspect. Serious violations result in disciplinary or criminal action against the investigator. 3. Commanders and investigators rely on the judge advocate (military lawyer) for legal advice related to investigations. In cases likely to result in a court-martial, investigators and the judge advocate work closely together to build a case for trial. Defense lawyers may also rely on investigators to provide evidence in favor of the suspects. B. Procedures for criminal investigations: 1. Investigations begin with a report of an offense. Such a report can come from law enforcement personnel, a victim of a crime, or a witness. 2. The report of the offense usually goes to the suspect s commanding officer for disposition. In all but the most minor crimes, the commanding officer will order a more complete investigation. The nature of the crime will determine whether the case is assigned to the military criminal investigative agency, the military police, or an officer within the unit. 4

5 U.S. Military Investigations: Types & Procedures Background Materials [SLIDE 8 Methods] 3. The following methods are often a part of a criminal investigation: a. Witness interviews: The investigator will interview people who may have witnessed a crime or may have information about a crime. Witnesses may not refuse to answer questions or make a written statement unless they would incriminate themselves. Intentionally making a false statement is a military offense. b. Suspect interviews (interrogations): The investigator will interview the suspect and try to obtain a statement from the suspect. Prior to the interview, the investigator must inform the suspect of the nature of the offense, that he has a right to remain silent, and that he has a right to the assistance of a lawyer. The suspect cannot be compelled to make a statement and may end an interview at any time. [ NOTE: The teaching point here is that investigators must advise suspects of their rights prior to an interrogation, and cannot coerce suspects into making a statement. If you are delving into U.S. law and practices, note that military investigators must be aware of the different protections afforded to military and civilian suspects. The Uniform Code of Military Justice, Article 31, requires that military members be advised of the rights described above. Federal law, based on Miranda v. Arizona, 384 U.S. 486 (1966), and a long line of subsequent cases and statutes, provides civilian suspects with somewhat different protections.] c. Informants: The investigator may try to use a government informant to gather evidence. An informant is someone who confidentially provides information about a crime, often in return for favorable treatment in his own criminal case. (See paragraph II.B.4, below) Informants operate under strict procedures to protect the reliability of the evidence. d. Collecting physical and documentary evidence. Collection, preservation, and analysis of physical or documentary evidence are often the keys to a successful criminal prosecution. Modern forensic techniques provide investigators with many tools for gathering this evidence. e. Searches and seizures: The investigator has limited authority to search for and collect physical or documentary evidence. The Fourth Amendment of the U.S. Constitution prohibits searches of private areas such as homes and brief cases without prior permission from a neutral judicial official. Commanders can authorize searches of areas within the unit. Military magistrates have broader authority to authorize a search. In emergency situations, investigators can search without prior permission. 5

6 Defense Institute of International Legal Studies The law regarding searches and seizures is complicated and often requires consultation with the judge advocate. [ NOTE: Generally, investigators do not need prior approval to search places and property under government control, but do need authorization to search areas for which a person has a reasonable expectation of privacy. This authorization can be obtained through the consent of the person who controls the property or a judicial authority. [ NOTE: Often, investigators first ask the person who controls the property for consent to search the property. [ NOTE: To obtain judicial search authorization, the investigator must show the commander/magistrate/judge probable cause to believe that the evidence sought is at the location of the search. The investigator does this by providing a sworn statement or affidavit to the commander/magistrate/judge. After reviewing the investigator s statement, the authorizing official will decide whether probable cause exists. [ NOTE: U.S. law on searches and seizures is complex, and contains many exceptions to the basic rules described above.] f. Electronic surveillance and monitoring: An investigator may use various forms of electronic surveillance to gather evidence. These tools range from video cameras and voice recorders, to wiretaps and monitoring and internet activity. In many cases, the investigator cannot use these methods without prior judicial approval. The law regarding electronic surveillance and monitoring is complicated and often requires consultation with the judge advocate. g. Scientific evidence: A variety of scientific investigative techniques are used to prove crimes. In the military, the use of chemical tests on urine to determine drug use is routine. Other forensic techniques such as fingerprinting, handwriting analysis, blood analysis, and DNA testing are also widely used. 4. In some cases, prosecutors may be able to obtain additional evidence by using these tools: [ NOTE: These tools are not generally available to law enforcement authorities without coordination with prosecutors, or in the military, the convening authority.] a. Plea Bargain (In the U.S. military, this is called a pre-trial agreement ): A plea bargain is an agreement between the government and an accused. The accused agrees to plead guilty to criminal charges. In return, the government agrees to limit the sentence imposed on the 6

7 [SLIDE 9 Records] U.S. Military Investigations: Types & Procedures Background Materials accused. Often, a plea bargain includes an agreement that the accused will testify against a co-accused or provide additional evidence for another case. b. Immunity: In cases involving more than one suspect, it is often necessary to have one suspect provide statements or testify against another. Persons who are suspected of an offense can not be compelled to testify in a manner which would incriminate them. However, if the government promises not to use any of the information provided in a later prosecution of the suspect, the suspect can be compelled to testify. This promise is called a grant of immunity against future prosecution. 5. Every step of a criminal investigation must be carefully documented to establish that the evidence is credible and reliable. For investigations that lead to a trial, the prosecutor must be ready to prove that investigators did not violate the defendant's fundamental human rights. Investigative records include: a. The report of investigation: This written report should include a summary of the facts, description of the evidence, procedures followed by the investigator, and the investigator s conclusions. (See paragraph I.E., above) [ NOTE: See for example Dept of Army Form 3975, Military Police Report, 5 pages. This form documents the initial report of an offense, and may be used to report investigations of minor crimes. Reports of investigation for more serious crimes are not generally prepared on a standard form, but contain many of the items found in this form plus additional details of the investigation.] b. Interview records: Written or typed statements of witnesses and suspects are supported by other documents to prove the reliability of the statements. These documents may include interview logs, records that investigators informed suspects of their rights, and investigators interview notes. Any video or voice recordings of interviews must be preserved. [ NOTE: See for example AF Form 1168, Suspect-Witness Statement, 2 pages. AF Form 3985, Interview Record, 2 pages.] c. Chain of custody records: These records document the movement and location of physical evidence from the time it is obtained to the time it is presented in court. To protect the accused, U.S. law requires that investigators and prosecutors must account for physical evidence at every moment it is in the custody of the government. 7

8 Defense Institute of International Legal Studies [ NOTE: See for example DA Form 4137, Evidence/Property Custody Document, 2 pages. ] d. Search authorizations: These records include the affidavits prepared by investigators and presented to commanders or magistrates, along with the decisions by the commanders or magistrates. [ NOTE: See for example DA Form 3745, Search and Seizure Authorization, 1 page. DA Form 3744, Search and Seizure Affidavit, 2 pages.] e. Investigative logs and notes: This includes records of surveillance, handling informants, and other investigative activity. f. Scientific reports: These reports document the methods and findings of scientific techniques used in an investigation. [SLIDE 10 Administrative Investigations] III. ADMINISTRATIVE INVESTIGATIONS A. Administrative investigation is a term for many types of fact-finding inquiries for commanders and other decision-makers. These are not usually investigations into criminal activity. 1. U.S. commanders have inherent authority to investigate matters or incidents under their jurisdiction. 2. Investigations should be conducted by the lowest level of command able to conduct a complete, impartial, and unbiased investigation. 3. Reprisal against an individual for making a complaint is prohibited. [SLIDE 11 Types of Investigations] B. Many laws and regulations require investigation into particular events or activities. A few examples of administrative investigations conducted by the U.S. military include: 1. Inspector General investigation: The U.S. Department of Defense and each military branch have Inspectors General (IG) at different command echelons. The IG is an independent position responsible for conducting investigations relating to the prevention and detection of fraud, waste, and abuse in the military. The IG also investigates allegations of reprisal against people who have made a complaint. 8

9 U.S. Military Investigations: Types & Procedures Background Materials [ NOTE: In some countries, Inspector General is a police rank or position. To avoid confusion, you might distinguish this from the U.S. military IG.] [NOTE: The DoD Inspector General recently completed an investigation into illegal hiring practices and other inappropriate activities at the DoD Education Activity, which oversees schools for military children on U.S. bases world-wide. Investigators substantiated six allegations of abuse of power and wasteful spending by the former Director, Shirley Miles in violation of federal hiring laws, the Joint Travel Regulation, Joint Ethics Regulation, and other DoD regulations and policies. The hiring actions typically related to failing to abide by veterans hiring preferences required by law. Instead, non-veteran candidates who were friends of Ms. Miles were hired without consideration of required preferences, including in one case her daughter-in-law. Ms. Miles was removed from her position and reassigned to a staff position in the DoD office of Military Personnel Policy. To date, there have been no reports of any disciplinary action. IG Report says Defense schools chief bypassed vets for jobs, Federal Times, 30 June 2011.] 2. Safety investigation: Military regulations require commanders to initiate safety investigations into mishaps that involve serious injury, loss of life, or significant damage to property. These investigations and their reports are protected from disclosure. Safety investigations and reports are used only to prevent future mishaps. 3. Accident investigation: A commander may direct a legal investigation into a serious mishap, such as an aircraft crash. Unlike safety investigations, accident investigations provide a publicly releasable report of the facts and circumstances surrounding a mishap. Evidence gathered during an accident investigation may be used for adverse action or criminal prosecution. 4. Discrimination investigation: U.S. law prohibits the government from discriminating against a person based on race, religion, or gender. Military regulations require investigations into complaints of unlawful discrimination. [ NOTE: See for example DA Form 7510, EEO Counselor s Report, 5 pages. You may wish to use this form as a sample of a report of an administrative investigation. This form documents a discrimination complaint and the Equal Employment Opportunity (EEO) counselor s initial, informal inquiry into the matter. [ NOTE: EEO law applies to civilian government employees; similar rules and procedures provide protections to military members. EEO complaint and investigation procedures are lengthy and complicated, involving many levels of investigation and review from inside and outside the agency.] [SLIDE 12 Procedures] 9

10 Defense Institute of International Legal Studies C. Procedures for administrative investigations vary widely, depending on the type of investigation. The regulations for most types of investigations include a description of the procedures required for a particular investigation. [ NOTE: As all investigations follow the same principles: Start with a plan; follow established procedures and law; conduct a systematic examination; remain impartial; and document thoroughly. [SLIDE 13 Methods] 1. Many of the methods used in criminal investigations are appropriate for administrative investigations. For example, an investigating officer will interview witnesses, collect physical and documentary evidence, and prepare a report of investigation. 2. The rights of individuals vary depending on the type and scope of the investigation and whether adverse action or criminal prosecution may result. In any investigation, individuals rights should be preserved. Failure to follow administrative regulations undercuts an investigation s credibility and reliability. 3. Decisions based on a flawed administrative investigation may be overturned by the courts. U.S. law binds the government to follow its own administrative procedures. Failure to do so often results in the need to repeat the investigation. [SLIDE 14 Forwarding and Review] IV. FORWARDING AND REVIEW OF INVESTIGATIONS A. Investigations and their reports will be reviewed by someone other than the investigators. Criminal investigations are forwarded to the suspect s commander and the prosecutor. Administrative investigations may be forwarded to several government entities for review and action. Regulations usually describe who is authorized to receive the report of investigation. Release of reports and investigative findings to the public and media is controlled by law and regulation. B. As described at the beginning of this outline, the primary purpose of an investigation is to provide facts to those who will use the investigation as a tool to make decisions. A well-planned, complete, and lawfully conducted investigation will give commanders, prosecutors, and other decision-makers essential information they need for responsible action. [SLIDE 15 End Slide] 10

11 U.S. Military Investigations: Types & Procedures Background Materials 11

12 Defense Institute of International Legal Studies [ Recommended sources: The Military Commander and the Law (USAF/JA) at DOD Directive (DODD) , Inspector General of the Department of Defense. Air Force Manual (AFMAN) , Legal Considerations; relates to criminal investigations. Air Force Instruction (AFI) , Safety Investigations and Reports. William Dienstein, Technics [sic] for the Crime Investigator (2d ed., 1974). Charles W. Fricke and George T. Payton, Criminal Investigation and the Law (7th ed., 1974). [NOTE: Attachments to Instructor Notes, for your reference. Not usually attached to Student Outline: Code of Conduct for Law Enforcement Officials, annex to U.N. General Assembly Resolution 34/169, 17 December Rights Advisements as found on DD Form 2820, 1 page DA Form 3975, Military Police Report, 5 pages AF Form 1168, Suspect-Witness Statement, 2 pages AF Form 3985, Interview Record, 2 pages DA Form 4137, Evidence/Property Custody Document, 2 pages DA Form 3745, Search and Seizure Authorization, 1 page DA Form 3744, Search and Seizure Affidavit, 2 pages DA Form 7510, EEO Counselor s Report, 5 pages 12

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