CHAPTER 14
Criminal Investigations
The investigation of crimes and offenses is a necessary part of any command's effort to protect its personnel, supplies, and facilities. It is also essential to the command's maintenance of good order and discipline.
DETERMINING PURVIEW
The purview for investigating crimes is divided among unit commanders, MPIs, and USACIDC special agents according to the type and seriousness of the incident under investigation. Procedures at the local level ensure mutual cooperation and support.This close working relationship achieves optimum results in investigations, apprehension of offenders, acquisition and transmittal of police information, and the prevention of crime.
UNIT COMMANDERS
Unit commanders have authority to take appropriate action on all barracks larcenies of property with a value less than $1,000 and simple assaults not requiring hospitalization. Unit commanders ensure that these types of offenses are reported to law enforcement activities for statistical and crime reporting purposes. A law enforcement investigation of such an offense is usually conducted only when considered necessary by the PM/security officer or the appropriate USACIDC commander. But it may be requested by a field grade officer in the chain of command of the unit concerned.
Commanders report all criminal offenses to the PM office. The PM office will refer the case to MPI or USACIDC if appropriate. After the PM is notified, the commander secures the crime scene and separates and holds all witnesses and suspects until MP and MPIs arrive. Direct coordination between the commander and the MPI for investigation status and narcotics detector dog support is authorized. Direct contact with USACIDC concerning investigative status also is authorized.
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CONTENTS CONDUCTING CRIMINAL INVESTIGATIONS |
The PM office provides commanders with a DA Form 3975 on offenses involving their personnel (see AR 190-45). On cases referred to the USACIDC, the commander will be provided with an initial report and a final report. Significant developments will be provided to the commander if appropriate. The final report will provide guidance for submission of a report of commander's action taken. Commanders need not wait for a final report before taking action.
Commanders are encouraged to assist the MPI and USACIDC in apprehending criminals. A commander can have an individual in his unit serve as a source. The source acquires and releases information concerning criminal activity to the MPI or USACIDC. Additionally, individuals in the unit may be asked to make buys from a drug dealer. These controlled buys, when there is an indication the suspected individual has been involved in some type of criminal activity in the past, do not constitute entrapment.
MPI AND USACIDC
Investigations of violent crimes are an inherent responsibility of the MP and the USACIDC. Such offenses may fall within the investigative purview of MPIs or within the investigative jurisdiction of the USACIDC.
MPIs normally investigate offenses as cited in AR 190-30. MPIs also coordinate and supervise the use of narcotics detector dogs in support of unit health and welfare inspections. USACIDC agents investigate criminal offenses that carry a maximum punishment of more than one year confinement. They investigate all narcotic offenses, sale/trafficking in marihuana and dangerous drugs, and larcenies of property valued at $1,000 or more.
Investigations are conducted in accordance with the provisions and restrictions of the MCM and the UCMJ. When there is any question of jurisdiction, authority, or legality of action or evidence, investigators seek the counsel of the SJA. The SJA is responsible also for the Army's Victim/Witness Assistance Program. Investigators cooperate and coordinate their case activities with the Victim/Witness Liaison.
OTHER INVESTIGATORS
In CONUS incidents occurring off post normally are investigated by civil law enforcement agencies, including state, county, and municipal authorities, or by a federal investigative agency. When an incident involving military personnel occurs off a military installation, coordination will be made with the appropriate civil court or law enforcement agency and the result reported on DA Form 3975. A copy of the civil police report will be obtained and attached to the MP report whenever possible. In overseas areas off-post incidents are investigated in accordance with SOFAs and/or US-host country agreements.
CONDUCTING CRIMINAL INVESTIGATIONS
To effect the prosecution of criminals, military investigators must know the technical and legal requirements for a successful investigation. Generally, the art of an investigation lies in gathering and evaluating information and evidence, both testimonial and physical. (FM 19-20 addresses investigative methods and techniques.) Testimonial evidence, like sworn statements of eyewitness accounts and admissions of guilt, is obtained through communication with people. Physical evidence, like identified weapons and fingerprints, is obtained by searching crime scenes, tracing leads, and developing technical data.
Military investigators develop skills and techniques to recognize, collect, evaluate, process, preserve, and account for evidence. From this evidence a court-martial or jury forms its conclusions as to the guilt or innocence of an accused. Evidence is the means by which any alleged matter of fact is proved or disproved. It includes all matters, except comment or argument, legally submitted to a court to enable it to decide a question before it. Military investigators must understand the general rules of evidence.
Investigative steps for gathering evidence in juvenile offenses are the same as those used in cases involving adult suspects. But MP must ensure that juveniles are processed in accordance with Public Law 93-415. And they ensure that children are protected from unwarranted treatment.
If MP must detain juveniles, they ensure that juvenile suspects are not detained in confinement facilities, detention cells, or hospital prisoner wards. Juveniles may be temporarily detained in the offices of the post commander or PM, but a check is made with SJA to ensure the proper conditions exist. Unless a juvenile is taken into custody for serious offenses, MP do not take fingerprints or photographs of them without written consent of a judge. MP routinely contact SJA to ensure they have the proper judicial authority. MP do not release names or pictures of juvenile offenders to the public.
Military investigators conduct their inquiries to find evidence and make it available for presentation in court. But something more than a mere collection of evidence is required of a successful investigation. The evidence must be admissible in court. Investigators must present to the court only admissible and reliable information upon which to base a proper decision. MP are always "evidence conscious." The scene of any crime is itself evidence. And so is the testimony of trained investigators about observations and findings at a crime scene. Both testimonial and physical evidence are vital to the successful prosecution of a case.
TESTIMONIAL EVIDENCE
Obtaining testimonial evidence requires skillful interpersonal communication with human sources of information, particularly with the persons directly involved in a case. Questioning victims, witnesses, complainants, suspects, and sources is the investigative method most often used to obtain testimonial evidence. It is also the method used to obtain background information that gives meaning to the physical evidence that is collected. Many crimes have been solved as a direct result of leads and testimonial evidence developed through interviews and interrogations.
PHYSICAL EVIDENCE
Collecting and evaluating physical evidence is an important technical part of any investigation. Physical evidence is one of the most valuable investigative assets. It produces leads to pursue to help bring the investigation to an end. And physical evidence can help establish the guilt or innocence of an accused person in a court of law. For example, as a general rule, a person cannot be convicted on the basis of an uncorroborated confession. There must be independent evidence, either direct or circumstantial, that raises an inference of the truth of the essential facts admitted in the accused's statements. Physical evidence can be that necessary independent evidence. And, while the rule requiring independent corroborating evidence does not apply to a confession made by an accused to the court during his trial, nor to statements made before or at the time the act was being committed, having physical evidence to substantiate such a confession or admission of guilt is desirable.
One of the main duties of an investigator is to ensure that the evidence obtained is admissible in court. Investigators must be careful to seize, collect, and accept receipt of evidence in a legal manner. They know they must be able to identify each piece of evidence weeks, months, or even years after it was collected. They must be able to describe the crime scene and where each piece of evidence was located at the scene. They must be able to explain any change in the evidence that has occurred since it was collected. And they must be able to prove that the evidence remained in proper custody from the time it was collected until it is presented in court.
The final result in bringing a successful investigation to a close is often the investigator's testimony in the courtroom. When preparing for trial, investigators coordinate with the trial counsel so there are no surprises in court. They develop a close working liaison with the trial counsel. They do not conceal information from the court. They know the accused has the right to a fair trial regardless of opinion. Investigators are professional in every way.
PRESERVING THE CUSTODY OF EVIDENCE
Investigators follow specific requirements in receiving, processing, safeguarding, and disposing of evidence and in preparation and disposition of property (see FM 19-20, AR 195-5, and AR 190-22).
To achieve the maximum benefit from physical evidence, investigators must be not only skilled in its collection, but careful in their handling of it to preserve it for laboratory examination and/or presentation in court. They must retain the item's integrity by keeping the item as nearly as possible in its original condition. Consideration should be given to the ease of identifying the item and the cost of the item when it is collected. Unnecessary marking of evidence may result in claims against the government for diminution of value of the item. All MP in contact with evidence must maintain a chain of custody--a chronological, written record of who has control of the item from the time it is acquired as evidence until it ceases to have value as evidence and is released or destroyed--to assure accountability.
The investigator who first receives, recovers, or discovers physical evidence must be able to identify such evidence positively at a later date as being the specific article or item obtained in connection with a specific investigation. To be able to do this, investigators mark and tag evidence promptly at the time they obtain it. If they can, they place their initials, time, and date directly on the evidence. If the evidence cannot be marked, all identifying data are noted on the container in which the evidence is placed. A record of all details of the marking of evidence is made in the investigator's notes. Photographs, sketches, and notes of the crime scene must show the exact places from which evidence was removed. This care is imperative to ensure the chain of custody of evidence is kept unbroken.
Evidence custodians control and account for all evidence received in an investigation. They are in charge of the evidence depository. When safeguarding, safekeeping, and transferring property, they ensure care is taken to guard property against loss, theft, pilferage, damage, alteration, or any change in its value or appearance other than by laboratory examination. They also maintain all evidence records.
Primary and alternate custodians are appointed, in writing, by the appropriate commander or PM (see AR 195-5). A copy of the appointing document must be kept in the depository files. These records must show who is responsible for evidence at any given time. The requirements for determining primary and alternate evidence custodian, and for recording and accountability of evidence, inspections, and inventories and security standards for evidence storage, are specified in AR 195-5. For more information on preparation of required forms and maintenance of evidence see FM 19-20.
Evidence custodians carefully maintain an evidence ledger. Corroborating entries in the ledger and on the custody document help assure accountability of evidence. The ledger is prepared with six columns spanning two facing pages showing--
- The document number assigned and the date evidence was received.
- The USACIDC or MPR sequence number.
- A brief description of the evidence.
- The date of final disposition.
- The final disposition.
- Remarks.
If an improper entry is erroneously made, the entry is lined through and the person's initials written across the line. The ledger book is completely filled before starting a new one. In large offices it may be necessary to start a new ledger each year to accommodate anticipated evidence entries. The cover of the ledger book identifies the organization or activity responsible for the evidence depository and the dates spanned by entries in the ledger. If more than one calendar year is covered in the ledger, the front cover reflects this information. After the last entry in the ledger for a calendar year, a statement identifying all documents contained in it is entered. (For example, "This ledger pertains to custody documents 001 through 432 for calendar year 1987.") The initial entry for the next year goes on the next page.
When evidence is temporarily released or custody changed, it is accompanied by a carefully completed DA Form 4137 (for directions see FM 19-20 and AR 195-5). The original DA Form 4137 goes with the evidence. A copy of the form is placed in the suspense file when the item of evidence and the original DA Form 4137 are temporarily released.
DISPOSING OF EVIDENCE
The evidence custodian is responsible for the disposition of evidence. He maintains continued and open communication with the supervisor and the SJA to ensure timely disposition of evidence. Consulting with the MP or special agent for pertinent information can assist in the timely disposition of evidence. If the SJA appoints his chief of military justice as the point of contact, plans are discussed with him. His assistance is requested in making timely disposition of all evidence.
To ensure prompt disposition of evidence, a suspense system can be established as an internal management tool. The US Army Criminal Investigation Laboratory (USACIL), adjudication, and pending disposition suspense files must be maintained. Other suspense files may be used, such as "Hold for Appellate Review," when the SJA advises that this requirement exists. There can be many variations to suit the needs of your particular evidence depository operation.
DA Form 4833 can be used to assist in timely disposition of evidence (AR 190-45 contains additional information). If final action has not been accomplished, the form may be placed in suspense for 15 to 30 days. This simple method has proved an effective follow-up to ensure timely disposition of evidence.
When it has been determined that final administrative or judicial action has been taken in a known subject case, the original custody document is handcarried or forwarded to the SJA of the commander exercising jurisdiction in the case.
If the SJA says the evidence must be held for further adjudication, the final disposal authority portion of DA Form 4137 is not completed. A brief memorandum for record giving the reason for retaining the evidence is written and attached to DA Form 4137.
If DA Form 4137 must be mailed to the SJA, a letter or DA Form 2496 (Disposition Form) is substituted containing sufficient information for the SJA to render a decision. The return correspondence indicating disposition approval is attached to the original DA Form 4137 for file at USACRC.
If an item of evidence is made a permanent part of the record of trial, the trial counsel coordinates this action with the evidence custodian so that DA Form 4137 can be properly, annotated.
DISPOSITION OF UNNEEDED EVIDENCE AND NONEVIDENCE
Evidence connected with an investigation in which no subject has been identified may be disposed of three months after completion of the investigation without SJA approval. Consideration must be given to serious crimes when the probability exists that a subject may be identified. If a need to dispose of the evidence in less than three months is determined, the SJA must approve the action. In either case, the supervisor must approve the disposal and complete the final disposal authority section of DA Form 4137.
Items of evidence found at a crime scene that have no owner or are of no obvious value, such as matchbooks, beer cans, bottles, glass fragments, and wooden sticks, will be destroyed in the presence of a witness by crushing, burning, or any other method to render the items useless and harmless. The witness in such cases can be of any grade. If no trial results from the investigation, or if there is a trial and the SJA advises the evidence is no longer needed, then the appropriate return/release/destruction can be made. Items in the evidence depository which are determined by laboratory analysis and the SJA to be nonevidentiary in nature may be disposed of. The witness may be anyone.
DISPOSITION OF EVIDENCE BELONGING TO US GOVERNMENT
When disposing of US government property, the items normally must be returned to the organization to which issued. Sometimes the unit cannot be identified or the item has been dropped from the property book. In such instances, the property must be released to the installation accountable officer. AR 710-2 is the authority for government property disposition.
Recovered US government treasury checks and money orders stolen or obtained from an Army and Air Force Post Office (APO) facility must be returned to the responsible APO facility when no longer needed as evidence. Approval must be obtained from the SJA for this release or return.
US postal money orders not identifiable as the property of a specific individual must be forwarded to the Military Money Order Division, Postal Data Center, PO Box 14971, St Louis, Missouri 63182, with a letter of transmittal. (Include the case number, date of final report, offenses, identification of subjects and victims, and a remark that the final report is available and on file at the USACRC, 2301 Chesapeake Avenue, Baltimore, Maryland 21222.)
When it is not practical or desirable to retain items of evidence such as military vehicles, government food items, or other items determined mission essential, disposition may be immediately initiated. If it is not feasible to obtain written permission or approval before disposition of the evidence, verbal permission may be obtained from the SJA followed by written authority on DA Form 4137.
Known document standards are normally returned to the office or individual from whom received. Exemplars and other documents that have no value or which the agency does not desire returned must be destroyed. When such items are destroyed, there is no requirement for a witness.
US government firearms and ammunition retained as evidence must be returned to the appropriate military organizations. Normally DA Form 581 (Request for Issue and Turn-In of Ammunition) is used as an adjunct to DA Form 4137 for the turn-in of ammunition. Preparation of DA Form 581 is governed by AR 710-2.
Final disposition of post exchange items, commissary items, and items illegally introduced into a host country, connected with black market, customs, and postal investigations, must be in accordance with local regulations, SOFAs, and laws or customs of the host country. When evidence is released to an external agency to be permanently retained and disposed of by that agency, the final disposal authority portion of DA Form 4137 must be completed.
Limitation .0015 contingency funds held as evidence must be disposed of by depositing the funds with the local finance and accounting officer on DD Form 1131 (Cash Collection Voucher). Before depositing funds with the finance and accounting officer, the accounting classification must be the same as on the voucher on which the funds were originally disbursed. A copy of DD Form 1131 showing the return of the money to the finance and accounting officer must go to the appropriate certifying and approving officer. Another copy of DD Form 1131 must be attached to the original evidence/property custody document.
DISPOSITION OF PERSONAL PROPERTY
Items of personal property that are legal to own and possess are normally returned to the rightful owner. Personal weapons that are lawful to own and possess but have been impounded for minor infractions (such as failure to register in accordance with local regulations) must be returned to the rightful owner when the requirements of local regulations have been met and the item is no longer needed as evidence.
Money for which a rightful owner cannot be identified must be submitted to Army Finance with DD Form 1131. A copy of the completed form is attached to the original custody document and forwarded to the USACRC with the completed case.
Items of personal property belonging to deceased or missing military personnel must be released to the summary court officer in accordance with AR 600-8-1. If the death of a civilian or military dependent occurs on the military reservation, normally the personal property is released to the agency assuming jurisdiction of the investigation, such as the FBI. Consult the SJA for specific guidance in such cases.
Items that have obvious monetary value, and for which reasonable attempts to locate the owner have failed, must be released to the property reutilization and marketing officer. DD Form 1348-1 (DOD Single Line Item Release/Receipt Document) is prepared when these items are released. SJA approval must also be obtained. This authority is found in DOD Manual 4160.21-M.
DISPOSITION OF CONTRABAND, CONTROLLED, AND ILLEGAL ITEMS
OF EVIDENCE
The disposition of contraband is governed by federal statutes. Therefore disposal of contraband must be in accord with applicable laws and regulations. Appropriate agencies should be contacted to determine if any other documentation is necessary for disposition of contraband.
Contraband firearms and ammunition or firearms and ammunition used or intended to be used in commission of criminal acts and retained as evidence (not US government property) must be released to USACIL-CONUS. Ammunition is relinquished to the nearest ammunition supply point, using DA Form 581.
Counterfeit currency or coins and the equipment necessary to print or make them are normally released to the nearest office of the US Secret Service (USSS). However, if the incident occurs outside the jurisdiction of the US, the counterfeit items will be released to the appropriate USSS office exercising jurisdiction over the host country. Coordination is effected with the USSS and SJA before making disposition of the items.
Controlled substances that are not associated with any ongoing investigation but were discovered or found on post may be immediately disposed of after it is determined that the substance cannot be connected with any ongoing investigation or suspect. Controlled substances or narcotics must be destroyed in the presence of a witness in grade E6 or higher. The witness may be any USACIDC special agent. The witness will not have been involved in the chain of custody. Destruction must be by burning or by methods that will permanently destroy the substance. Flushing the substance down a commode is not considered an appropriate means of destruction. Definitive guidance is found in AR 195-5.
DISPOSITION THROUGH NARCOTICS FIELD TESTING
Nonnarcotic controlled substances may be field tested when the commander exercising court-martial jurisdiction of a subject advises the PM or USACIDC supervisor that court-martial action will not be taken against the offender. Close coordination with the commander concerned is essential to determine the appropriate course of action. If the commander court-martial action, the forwarded to the supporting contemplates evidence is USACIL for forensic analysis. Evidence consumed through field testing must be appropriately deducted from DA Form 4137 by annotating the chain of custody section to reflect disposition of the quantity consumed. In most instances the quantity consumed is estimated, or stated as "a few particles" if that is the case.
USACIDC Form 36 (Field Test Results) provides a record for field test results of nonnarcotic controlled substances. This form is prepared and signed by the person conducting the field test. The test results are provided orally to the action commander as soon as possible in addition to a copy of USACIDC Form 36. Copies are attached as an exhibit and the original is retained and ultimately forwarded to USACRC.When definitive guidance cannot be found in AR 195-5 or AR 190-22, the SJA is consulted for guidance. It is the responsibility of the SJA to complete the final disposal action section of DA Form 4137.
FINAL DISPOSITION OF DA FORM 4137
After all items of evidence listed on a particular DA Form 4137 have been properly disposed of, the original and first copy of the form are placed in the case file to which they pertain. The original DA Form 4137 will be treated as any other original exhibit. It will be submitted to the USACRC along with the final ROI/MPR or other supplemental information. When the final report and all other supplemental information has been forwarded to the USACRC before closing the DA Form 4137, the DA Form 4137 is forwarded to USACRC as a single exhibit without a letter of transmittal. The USACIDC ROI number or USACRC report number, as applicable, must be reflected on the form when forwarded as a separate exhibit. The first copy of the form will be retained with the local file copy of the pertinent ROI or MPR and destroyed with the report. If the original DA Form 4137 is entered in the record of trial as a permanent part thereof, accompanies evidence released to an external agency, or is not available for any other reason, a copy from the suspense copy is made and substituted as the USACRC copy. A notation reflecting the disposition of the original will be made on the reproduced copy forwarded to USACRC. When DA Form 4137 pertains to items not connected with incidents or when a report is not forwarded to the USACRC, DA Form 4137 will be maintained in the local investigative case file to which it pertains until the file is disposed of in accordance with AR 25-400-2.
SUPERVISING MILITARY POLICE INVESTIGATORS
The military, police investigation supervisor (MPIS) is directly responsible for the supervision and control of all investigators assigned to the MP investigation section. To successfully supervise an organized, efficient operation, the MPIS must ensure that the regulations, policies, and procedures are complied with.
When an investigation is initiated and the case has been opened, the MPIS assigns the case a number and records the case on DA Form 3975. The MPIS assigns an investigator to the case and ensures a case file is opened and a progress report is initiated. The MPIS also ensures that an MP report number has been assigned and recorded.
The MPIS guides the investigation, checking case progress periodically. The MPIS ensures that each investigation is performed in a timely manner with entries recorded in the reading file in accordance with regulatory requirements and local policy. (See ARs 190-30, 190-40, and 190-45.) Each entry will reflect case progress, and if no investigation has been conducted, an entry will be reflected with a brief explanation. The MPIS ensures a first progress report is initiated and dispatched to the commander of the suspect/subject on the day the investigation becomes three days old (counted from the date it was reported in the MP blotter and the MP report number was assigned). The MPIS ensures that additional progress reports are completed and initiated every 45 days thereafter until the case is finalized. The MPIS ensures that all MP reporting files/investigations are safeguarded against illegal disclosures. The MPIS also updates suspect's commander and supervisor as necessary during the investigation. The MPIS supervises the investigators and provides technical and administrative guidance as needed throughout the investigation. The MPIS makes all proper notification and assists the investigators in preparing for judicial proceedings.
Once a subject has been identified, all leads have been exhausted, and SJA coordination has been accomplished, the MPIS ensures the final report is prepared. The MPIS checks the final report for content and errors. When all investigative leads have been exhausted and no subject has been identified, an administrative closing is appropriate until further leads are developed. All MPISs review the case and note their approval on the case log and the police report.
Supervisors of MP investigation sections should continually check on the quality of the performance of their investigators to ensure that the MPI mission is being effectively accomplished. An excellent example of a quality control method is outlined in FM 19-20. Other methods that could be employed are observations of interview situations through two-way mirrors, critiques of statements as they are obtained, and examination of statements during the final case review stage.
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KEY MPI PERSONNEL ACTIONS FOR MPI SUPERVISORS Screens applicants for the MP investigation section and ensures that they met the requirements as shown in AR 190-30.
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GENERAL MPI SUPERVISOR RESPONSIBILITES
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