If you do not deny a criminal accusation in a private conversation, does that mean you could be admitting to your own guilt?

According to the US Army Court of Criminal Appeals (CCA), it can. In a controversial new ruling, the three-judge panel determined that Mil. R. Evid. 304(a)(2) does not necessarily protect accused individuals who fail to deny the allegations against them if they know they are under investigation. The ruling may change how recordings of the accused's conversations are interpreted during a court-martial.


The CCA decision was rendered in United States v. Ahern. The defendant was found guilty in a court-martial for several counts sexual assault involving a minor. Ahern appealed the convictions, however, after the trial counsel had argued that recorded text messages between Ahern and the victim's mother did not include any denials of the accusations. According to the trial counsel, this was tantamount to an admission of guilt.

In the appeal to the CCA, Ahern presented Mil. R. Evid. 304(a)(2), which states: "Failure to deny an accusation of wrongdoing is not an admission of the truth of the accusation if at the time of the alleged failure the person was under investigation or was in confinement, arrest, or custody for the alleged wrongdoing." In other words, failing to deny any accusations or charges against you when under investigation or in custody is not an admission of guilt. Essentially, Ahern argued that because he knew he was under investigation for a crime, he chose not to respond to the victim's mother over text—and that failure to deny her accusations is not, in fact, an admission of guilt.


Due to other evidence presented at the trial, including detailed testimony from both the victim and the victim's mother, the CCA upheld the convictions against Ahern. However, they did address his Mil. R. Evid. 304(a)(2) issue, ultimately ruling that rule was not meant to be applied literally and that the appeal did not stand.

In their slip opinion, the judges outline seven reasons why they came to their conclusion—many of them citing perceived ambiguity with the evidence rule and the government's lack of specificity in its implementation.

  1. The drafters intended that the Sec. III rules be drafted broadly with the intent that case law fill in in the specifics when instances are necessary.
  2. The accused was seeking a “pre-Miranda” exclusion of this testimony (or silence in this case). Because this silence was given before being arrested but after the accused knew they were under investigation, their silence could be admissible.
  3. Because Article 31 is not interpreted literally (doing so would provide a “comprehensive and unintended reach into all aspects of military life and mission,”) case law provides a framework which allows rulings based on the intent of the law, not its verbatim wording.
  4. Admission by silence is weighted no less based on the accused’s lack of knowledge regarding a pending investigation.
  5. Mil. R. Evid. 304 (a)(2) says that courts cannot consider admissions by silence when a suspect is under investigation, in confinement, has been arrested, or is in custody for the act for which they are accused. By practical logic, if an accused has been arrested, there has already been an investigation, no matter how brief.
  6. Previous rulings have indicated that the presence of an investigation does not inherently assume that the accused is aware of such investigation. Instead, Mil. R. Evid. 304 (a)(2) does not come into effect until the suspect becomes fully aware of the investigation.
  7. By allowing the accused’s argument as to when Mil. R. Evid. 304 (a)(2) becomes triggered, it opens the door to “increased and unnecessary litigation in some (limited) circumstances.” This has to do with when an investigation starts and when an admission by silence is given, based on time of day, and determining whether or not the evidence is admissible based on when it was initially given, which can be difficult to determine.

As a result, the decision was ultimately given saying that “Mil. R. Evid. 304 (a)(2) is triggered by an investigation when the accused is aware of the investigation.” When the accused becomes aware of the investigation is determined through the evidence of an interview with a questioner, and as to whether a reasonable average person in the suspect’s position should know whether or not they are under investigation.

The United States v. Ahern decision provides a troubling precedent for the rights of the accused in a court-martial. While the court proves here that it will tolerate a flexible interpretation of Mil. R. Evid. 304(a)(2), those accused of serious allegations may have their case hinge on a simple "admission by silence." Now, when an accused military member "fails" to deny a pre-arrest accusation to the court's satisfaction, their perceived silence could be used by the prosecution against them. It is these type of decisions that make aggressive, incisive defense counsel an absolute necessity for accused military Service members.

Joseph L. Jordan, Attorney at Law served in the US Army for over a decade. Now, he has dedicated his firm to the advocacy and defense of armed forces members in every branch of our military. He travels the world to protect the interests and reputations of our clients and consistently secures favorable results on their behalf.

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