CID Investigation ProcessDecember 21, 2020
The CID investigation process is governed by an Army Regulation that is not available to the public (a restricted regulation). The following article, which is meant as a general overview, is based on Attorney Matthew Barry's experience with the military justice system.
CID, or the Criminal Investigative Division, is the Army's felony investigators. Essentially, the organization is responsible for investigating any felony crimes. CID can also investigate crimes that are not felonies; however, this is abnormal. For this to occur, it would have to be some sort of high profile military crime that technically isn't a felony. If a Soldier is under investigation by CID, he/she can safely assume that they have been accused of a felony. The most common allegations that CID investigates are: rapes, sexual assaults, murders, drug crimes, aggravated assaults, and larger thefts.
CID is composed of Soldiers who wear civilian clothes on a daily basis. Primarily, the organization is made up of E5s and above, as well as Warrant Officers. It is important to remember that although they wear Civilian clothes, which is a tactic, members of CID are almost all NCOs and Warrant Officers.
The CID investigation process begins when an allegation is brought to their attention. Typically, a person walks into the CID office and informs them that he/she has a crime to report. Most commonly, a Soldier walks into CID and tells an agent that he/she was sexually assaulted. Often times, the Command reports a crime to CID that a Soldier reported to them. For example, a Soldier tells his/her Company Commander that he/she was sexually assaulted. In this case, which is common, the Command is required to report the alleged crime to CID and an investigation is started. These are just two examples, and CID is made aware of accusations of crimes in numerous other types of ways.
One thing that is important to remember is that CID does not care if anyone is "pressing charges." If CID receives an accusation, they will investigate it and make a report to the Command and Prosecutor. They do not care if the victim of the crime does not want to pursue a case against the subject of the investigation.
Furthermore, once CID receives "credible" information that a crime has been committed, they make a decision called "a titling decision." Essentially, within their database, they list the accusation made (i.e. sexual assault, rape, assault) next to the subject's name. Practically speaking, CID considers any accusation they receive to be credible. For example, if SPC Jones accuses SPC Smith of sexual assault to a CID agent, the CID agent will "title" SPC Smith with sexual assault. Even if the allegation ultimately ends up being unsubstantiated, or if SPC Smith is exonerated, or if no action is taken against SPC Smith, he will always be "titled" for sexual assault. This "titling" decision ultimately gets reported to the NCIC database. Essentially, anytime someone runs a background check on SPC Smith in NCIC, it will show that he was "titled" for sexual assault. This can have lasting consequences and is not commonly known. The "titling" decision can be appealed to CID and, subsequently, to the Board of Corrections for Military Records, using DD Form 149. More information about appealing a "titling" decision can be found at this link.
Regardless, once the CID investigation process is started, a primary case agent is assigned. He/she investigates the allegation. Typically this consists of interviewing the victim of the crime as well as any potential witnesses and people who may have knowledge of the alleged crime. The agent will also work to collect any evidence that may exist. This list is not exhaustive, but the following pieces of evidence are commonly collected by CID:
- Cell phones
- Text messages
- Snapchats, Instagram Messages, Facebook Messages, etc.
- Photos of a person
- Firearms, knives and other weapons
- Contracts, leases, etc.
Evidence can be seized by consent (the person possessing the evidence allows CID to take it) or by the agent requesting a seizure authorization from a military magistrate after articulating probable cause. Once CID has seized the evidence in question, they typically search it for information that is of evidentiary value. Again, searches can be consented to or authorized by a military magistrate after articulating probable cause. Searches consist of not only the agent examining the evidence themselves (like text messages), but sending the evidence in question to experts for testing (i.e. DNA testing).
CID will always interrogate the subject of the investigation. The subject will be ordered to CID by his/her Command, searched, and place in an interrogation room. The agent will first engage in small talk, before ultimately reading the subject his/her rights. CID agents will typically tell the subject that he/she has not been accused but is only suspected of committing an offense. It is important to note that this is not a meaningful distinction at this point in the CID investigation process, and agents only say this to convince subjects to talk with them. The agent will only vaguely inform the subject what crime he/she is suspected of committing (i.e. sexual assault, rape). Soldiers under investigation by CID have the same Constitutional rights that others accused of crimes do. A Soldier's rights are explained more at this link.
At some point, the primary CID agent will determine that the investigation is complete. This should occur when there is no more evidence to collect; however, it can also occur when maybe there is more evidence to collect, but there is already enough evidence to determine that the subject committed the alleged crime. Once the agent believes he/she has reached this point, they brief their case a prosecutor (JAG). The prosecutor should review the complete casefile and either agree/disagree that the investigation is ready for further processing. Furthermore, as of 16 September 2022, CID now makes the final determination on whether there is probable cause or not (called a CID OPINE). While the unit JAG provides an opinion, CID makes the final decision. This makes the CID investigation process even more troubling, taking away an important check and balance.
If it is determined that there is no probable cause, the case is closed and the subject will be unflagged. If there is probable cause, a very low standard, the subject's DNA and fingerprints will be placed into CODIS, where they will remain unless the subject later petitions to have it removed after he/she is exonerated.
Furthermore, if there is probable cause, and if the investigation involves certain offenses (sexual assault, rape, domestic violence, child abuse, manslaughter, kidnapping, murder), the case will be presented to the recently created Office of the Special Trial Counsel. The Office of the Special Trial Counsel will decide whether to pursue a Court-Martial or not. For all other cases, the unit JAG will make a recommendation to the Command about what action, if any, should be taken. This could be anything from the preferral of Court-Martial charges to a letter of reprimand. The ultimate decision to take action, or not, rests with the Office of the Special Trial Counsel/Command (depending on the type of case); the CID agent and the unit prosecutor can only make recommendations. Any level of Command can take action. For example, if the Company Commander and Battalion Commander decide to take no action, the Brigade Commander can still step in and prefer Court-Martial charges. This does not run afoul of Unlawful Command Influence.
Typically, once action is taken by the Office of the Special Trial Counsel/Command (i.e. preferral of Court-Martial charges), the CID investigation process is over. However, a prosecutor can still request that CID gather more evidence against the subject while pending Court-Martial charges.
The normal CID investigation process takes about 7-8 months from the time a crime is reported until some action, or no action, is taken against the subject.
Anyone who is informed that they are under investigation by CID should proceed with caution. Consultation with a military lawyer is advisable.
This article was written by Attorney Matthew Barry.