- Military Law, Military Law Advice, Ask a Lawyer - Navy Times

Q. Can I get in trouble if I impulsively deny something to an investigator to avoid confessing to a crime?

A. The Fifth Amendment of the U.S. Constitution grants Americans the right against self-incrimination and the right to silence.

These rights extend to service members, but many often do not assert them. Instead of invoking their right against self-incrimination or to remain silent, troops being interrogated sometimes utter what is called an “exculpatory no” — a false statement made in response to an interrogator’s question with the intent of denying guilt.

In the early 1990s, military courts were divided on this issue. The debate ended when the U.S. Court of Appeals for the Armed Forces ruled in U.S. v. Israel Solis (1997) that an “exculpatory no” cannot be used as a defense to a charge of false official statement in violation of Article 107 of the Uniform Code of Military Justice.

So what should service members do if they blurt out a “no” when asked about their involvement in or knowledge of a crime, and are subsequently charged with making a false statement?

Well, even without the “exculpatory no” defense, service members may have options available to them to defeat the Article 107 charge.

First, there is the question of whether the service member’s response to questioning rose to the level of a false statement. To satisfy this charge, the member must have made a knowingly false official statement with the intent to deceive. If the member did not make the statement in the line of duty or did not know it was false, Article 107’s criteria may not have been met.

Next, there is the question of whether the interrogator informed the service member of his rights to remain silent and against self-incrimination.

Finally, if the service member expressly invoked these rights and the interrogator asked a question that elicited a false statement, there may have been a due process violation.

Whenever questioned, it is best for service members to invoke their Article 31 rights and seek counsel immediately and not make any statements.

Service members charged with making a false official statement should immediately contact a military law attorney who can help them determine whether any of these prospective defenses apply to their case, and possibly raise them at court-martial.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.