Sworn StatementsOctober 21, 2019
Sworn statements are verbal or written statements that Servicemembers swear are the truth and nothing but the truth. I have had clients in the past that think that as long as they don’t swear to a statement, it can’t be used against them in Court. This is not the case.
In the context of a Court-Martial, whether a statement is sworn to or not doesn’t have any meaningful distinction. If the Servicemember makes a written statement, but doesn’t swear to it, or even sign it, it can still be used against them at trial. The prosecution will simply call the individual who witnessed the Servicemember writing the statement to testify. That witness will tell the jury that he/she saw the Servicemember make the statement in question. Unless that witness can be made out to be a complete liar (which is unlikely), the jury is likely to give the statement the same weight as a signed or sworn one.
The same goes for a verbal statement. I don’t think a jury cares if a Servicemember swore to a verbal statement or not. They are likely to give sworn and unsworn verbal statements the same weight. The prosecution will admit said statements at trial by calling the witness who heard it. That witness will identify the Servicemember and repeat to the jury what he/she heard.
There is an argument to be made that sworn statements are weighed more heavily by the jury; that if someone swears to the truthfulness of a statement, it is more important than an unsworn statement. I have not seen this in my experience. A statement from a text message is generally given the same weight as a signed and sworn statement created at the Criminal Investigative Division Office. Sometimes, a text message can be given even more weight than a signed and sworn statement.
The bottom line, and point of this article, is that any Servicemember who thinks he can say whatever statement he/she wants without repercussion as long as it isn’t sworn, is wrong. Servicemembers should understand that any verbal or written statement made can be used against them. To illustrate, the following are all statements that could be introduced at a Court-Martial or some other disciplinary proceeding (Administrative Separation, Nonjudicial Punishment, etc.):
-a signed and sworn written statement given to a CID/NCIS agent
-a verbal statement given to a CID/NCIS agent
-a verbal statement made to a Servicemember’s mother
-a text message sent to the Servicemember’s roommate
-an “off the record” comment made to a Servicemember’s Squad Leader
-an audio recording of a Servicemember talking to his girlfriend
-a Snap Chat conversation between a Servicemember and a complaining witness
-a signed statement given to an investigating officer
-an unsigned statement written by a Servicemember
If a Servicemember is under investigation, been asked to give a statement, or has already made a statement, they should seek counsel immediately.
This article was written by Attorney Matthew Barry