I have previously written about why one should never waive Article 31(b) rights (the functional equivalent to Miranda rights in the civilian world) when interviewed by law enforcement unless guided by a skilled attorney.  One of the reasons is because law enforcement officers like detectives and NCIS special agents have years of training and experience related to interviews and interrogations – most suspects have no such training and do not grasp the techniques being used to build a rapport and obtain admissions or confessions, which can be extremely damaging at trial.  Often, there is a third type of statement made to law enforcement by suspects that is severely damaging to an accused a trial – the false exculpatory statement.

The “false exculpatory statements” instruction is one of the most powerful tools in a prosecutor’s arsenal.

A false exculpatory statement is a detailed explanation made by the accused that seeks to exculpate (in some way) the accused from the alleged criminal act; the only problem is that the statement turns out to be false.  A general denial is not a false exculpatory statement; however, providing an alibi that is proven by investigators to be false is a seasoned prosecutor’s dream.   But, a false exculpatory statement is not limited to false alibis and need not go to the heart of the alleged crime – the instruction covers virtually any false statement of fact that is tangentially related to the alleged crime.

Take, for example, a young Solider who is brought into Army CID and accused of sexually assaulting a female Soldier in the barracks.  CID asks the young Soldier, who is very nervous, about his relationship with the complaining female Soldier.  Scared to associate himself with the female Soldier, the suspected Soldier states he “barely knows” the female Soldier; on the defensive and now committed to this statement, the young Soldier denies text messaging or Facebook messaging the complaining Soldier.  The only problem is that the complaining Soldier has already turned over all of the text and Facebook messages between the two, which turns out to be about 20 messages and all of which are not relevant to the allegation of sexual assault.  The damage, however, has been done; the suspected Soldier, by making false statements about messaging to distance himself from the complaining Soldier, opened the door for the false exculpatory statement instruction during the trial.

The instruction states, in part, “Conduct of an accused, including statements made and acts done upon being informed that a crime may have been committed or upon being confronted with a criminal charge, may be considered by you in light of other evidence in the case in determining the guilt or innocence of the accused. If an accused voluntarily offers an explanation or makes some statement tending to establish (his)(her) innocence, and such explanation or statement is later shown to be false, you may consider whether this circumstantial evidence points to a consciousness of guilt. You may infer that an innocent person does not ordinarily find it necessary to invent or fabricate a voluntary explanation or statement tending to establish (his) (her) innocence. The drawing of this inference is not required.”  And, it permits the prosecution to the same in its closing argument.

An experienced defense attorney will be able to combat a prosecutor’s desire to use the false exculpatory statement instruction through pretrial motions and courtroom advocacy.  Patrick Korody is a former state, federal, and military prosecutor and military defense counsel who has routinely litigated issues surrounding false exculpatory statements.