Subject of a Naval Criminal Investigative Service (NCIS) Investigation?
Follow this guide if you are under investigation by NCIS!
How do I know if I am under investigation by NCIS?
NCIS likes to keep the fact that they are investigating you quiet for as long as possible! There is no notification that is required to be made to a person under investigation by NCIS – NCIS refers to this person as the “subject” of the investigation. You may find out that you are the subject of a NCIS investigation from a friend or associate that is contacted by NCIS and, even though he or she is told by NCIS not to inform you of the investigation, does so anyway. If you are given a military protective order (MPO) or placed on restriction or in pretrial confinement by the military, you can be pretty confident you are under investigation by NCIS. If you become aware of an allegation made against you that has been reported to NCIS directly or via your command regarding a sex offense or felony type offense, NCIS is investigating you.
Most Sailors and Marines find out they are under investigation by NCIS when they are ordered to report to the NCIS office at a specific time, normally under escort by another member of the command.
What happens when I report to NCIS?
Having worked for NCIS and worked closely with them as a Navy prosecutor and defense attorney, I can tell you that NCIS loves to put subjects on ice before interviewing them. They generally do this by having them wait in the NCIS office waiting room for 30 to 60 minutes. Keep in mind that you are being monitored by video and audio while in the waiting room. The agents then normally reappear from behind closed doors, apologize for the wait (acting as if they preoccupied with matters of national security), and, before escorting you back to the interview room, will ask the subject to remove everything from his or her pockets and conduct a pat-down for contraband or weapons.
They may have you lock your phone and other valuables, with the exception of your military ID, in a locker in the waiting room.
What happens during a NCIS interview?
First, you will be in a small interview room. Everything is being audio and video recorded – look around and you’ll see a switch or smoke detector or box that doesn’t look right.
NCIS will try build a rapport with you – small talk. Then an agent (there are normally two in the room – a primary interviewer and a note-taker) will complete a biographical information sheet, including asking questions about your military career and security clearance. Next, one of the NCIS agents will produce an Article 31b, UCMJ Suspects Rights Advisement Form. The form will look like this.
Article 31b, UCMJ has a unique requirement with no civilian counterpart – when advising you of your rights, NCIS has to inform you of the offense r offenses that they suspect you have committed. Unfortunately, this is an area litigated often in court because NCIS may just write “Article 120, UCMJ” on the form, and Article 120 contains a dozen different sex offenses. Moreover, they won’t tell you the date of the alleged offense or who the complaining victim is. When you ask, they will tell you that they have to go through the rights before they can tell you the details.
Next, the NCIS agent will go through the rights and ask the subject to acknowledge each right by initialing next to it. The NCIS agent will then ask the subject to read the last paragraph aloud and sign and date below it. The trick is that the last paragraph is the actual waiver of these IMPORTANT constitutional and statutory rights!
Should I waive my Article 31b, UCMJ rights and speak to NCIS?
Unless you have spoken to an experienced military law attorney and discussed whether it is in your best interests, and that attorney is present with you during the interview, you should never speak to NCIS investigators.
NCIS agents are trained interrogators. They use a variety of interrogation tools to obtain confessions and admissions of conduct corroborating a crime. Though the agent will tell you they “just want to hear your side of the story” and if you don’t talk to them “your command won’t know what really happened,” NCIS is a federal law enforcement agency tasked with investigating crimes and referring crimes for prosecution.
Don’t speak to NCIS. Instead invoke all of the rights on the rights advisement:
- Remain silent
- Request a lawyer be present
- Terminate the interview and request to leave NCIS
Once you leave NCIS, you need to immediately contact an experienced military lawyer. Being investigated by NCIS is a serious matter and normally results in court-martial charges. A military law lawyer can also assist in revoking any consent that you gave to searching your property or body.
Shouldn’t I speak with NCIS to explain my side of the story?
The answer is generally “no.” However, once you have retained an experienced military law lawyer, you and that lawyer can make an educated, informed decision as to whether you should speak to NCIS in the presence of your lawyer. Often, military law lawyers can obtain information about the allegation and investigation from NCIS or command leadership to determine if it is in the subject’s best interests to reengage with NCIS and provide a statement.
Moreover, Sailors and Marines that think they can talk their way out of a NCIS investigation normally end up making some type of false statement or admitting to collateral misconduct. And though they may ultimately be innocent of the conduct NCIS was initially investigating, they now have a false statement charge and new charges to deal with.
Can NCIS still ask me to search my car, home, phone, or computer if I invoked my right to remain silent?
Generally, yes. NCIS can ask to search your car, your house, your phone, or any other property you possess. The NCIS agent may ask if you consent to give a DNA sample (or they make take a sample if you are being arrested, regardless of your consent). NCIS agents often ask to search smartphones and will ask for the password the phone. They may show you a form like this NCIS consent to search form.
First, do not ever consent to a search of your property or body. Second, be sure to ask for a lawyer when you invoke your rights because the current status of the law provides that a request for a lawyer also impacts the abilityof law enforcement to obtain consent to search.
Finally, if NCIS tells you that they have a search warrant or search authorization to search your property or body, ask them to provide you a copy of it so you can review it and take it with you to provide your attorney.
If the NCIS agent tells that if you do not consent they will go to your command and get a search authorization, still do not consent! Make the agent go through the effort of getting a search authorization. A search authorization can be challenged in court. It is very difficult to challenge a search conducted pursuant to consent.
What happens once I am released from NCIS?
Your command representative will escort you out. Depending on severity of the allegation, you could be placed in pretrial restraint including restriction or the brig. You may be simply released to go home or back to the barracks.
Be sure not to make any statements to your escort, the chain of command, friends, and definitely no online posts. You should immediately contact an experienced military law attorney.
Top five things to do if under investigation by NCIS
Make no statements to anyone except an experienced military law lawyer. Do not post on social media. Do not try and figure out who is accusing you.
When read your rights by NCIS, invoke ALL of your rights, especially the right to remain silent and the right to counsel.
Do not consent to the search of any of your property or your body.
Do not commit any type of misconduct while under investigation by NCIS. Stay away from alcohol and drugs.
Locate and retain an experienced civilian military law lawyer. If you can’t afford a civilian lawyer, contact your local military defense counsel office and insist that they make a JAG available for you to speak to.
Attorney Patrick Korody is a former Navy JAG who specialized in military justice including NCIS investigations and courts-martial. During law school, he worked at NCIS Headquarters Legal in Washington, DC. During his decade of active duty in the Navy JAG, Mr. Korody worked closely with NCIS as a military prosecutor and zealously challenged their investigations, tactics, and credibility as a defense counsel. Mr. Korody has earned a reputation as one of the most knowledgeable and zealous military law lawyers in the country.