November 21, 2025

Updated: November 21, 2025

NCIS Rights Advisements and the Line Between Clarification and Misleading: A Short Analysis of United States v. Rivera

At Cave & Freeburg, we study every new appellate opinion because each decision reveals how investigators question service members and how courts evaluate those interrogations. These cases help us identify issues that may make the difference in your defense.

In United States v. Rivera, NMCCA reviewed a challenge to the admissibility of a Marine’s confession following a sexual assault investigation at Camp Lejeune. Rivera claimed NCIS agents misled him about his rights under Article 31(b) and Miranda, rendering his waiver involuntary. The central issue arose from Special Agent Foxtrot’s explanation of the right to counsel—an explanation that referenced TV shows, emphasized “that’s not what we do,” and suggested that invoking counsel would end the interview.

The military judge denied the motion to suppress, and NMCCA affirmed. The appellate court emphasized that the agent correctly stated Rivera’s rights multiple times, both orally and in writing, and repeatedly told him he could consult a lawyer or have one present. Nothing in the record showed the agent told Rivera the rights did not apply to him. Rivera’s age, intelligence (GT 126), prior service, and college studies supported the finding that he understood the warnings.

NMCCA distinguished this case from United States v. Patterson, where investigators affirmatively misstated Article 31(b) rights and minimized the advisement. Here, the agent’s comments addressed logistics—not the existence or scope—of the right to counsel. The court held that Rivera knowingly and voluntarily waived his rights and that the military judge did not apply incorrect legal principles.

This case illustrates why early legal advice matters. Agents often blend persuasion with explanation, and small language choices can create confusion. At Cave & Freeburg, we scrutinize these details to protect your rights and challenge improper interrogation practices wherever they arise.

Here’s how we at Cave & Freeburg might approach this issue if we represented this person at trial.

Argument: SA Foxtrot Used an Active-Discouragement Technique That Undermined Rivera’s Ability to Knowingly and Intelligently Waive Counsel

I. Introduction

The record shows that SA Foxtrot repeatedly stated that Rivera “had the right” to counsel, but then immediately framed the exercise of that right as pointless, unavailable, and inconsistent with NCIS practice. That pattern fits the well-recognized psychological technique known as active discouragement—a deliberate method of talking a suspect out of exercising a right while technically reciting the warning. Courts, scholars, and interrogation researchers have consistently identified this technique as a method that appears compliant on its face but operates to defeat the very purpose of Miranda and Article 31(b).

The interrogation transcript in this case displays every hallmark of the active-discouragement strategies identified in the literature. When those principles are applied to the facts here, Rivera’s waiver cannot be deemed knowing or intelligent.

II. The Psychological Literature Identifies “Active Discouragement” as a Strategy that Persuades Hesitant Suspects to Waive

A. Cassell and White recognize that police “explain” rights in a manner designed to dissuade invocation

Cassell describes a common “accommodation” to Miranda in which officers deliver the warnings “in a manner designed to discourage suspects from invoking their rights.” This includes telling the suspect that asking for a lawyer will prevent officers from “hearing their side,” halt the suspect’s chance to “explain,” or impede leniency-oriented considerations.

White similarly documents that interrogators use rights “explanations” that implicitly redefine the right as counterproductive, creating the impression that choosing counsel “closes doors” and results in consequences that the law does not actually impose. These approaches mirror the very language SA Foxtrot used here.

B. Leo, Kassin, and related psychological research show that suspects interpret discouraging messages as cues that invocation is abnormal or harmful

Psychologists identify that suspects interpret subtle cues—including officer statements about logistics, delay, or negative optics—as signals that invoking counsel will harm their situation. Leo notes that investigators often sequence rapport-building with “softening” explanations that make invocation appear unusual, obstructive, or inappropriate.

Smalarz, Scherr, and Kassin explain that when investigators pair a rights warning with statements encouraging cooperation and emphasizing the downsides of silence or counsel, suspects overwhelmingly choose waiver—even when they subjectively wish for protection. They do so because they infer that invocation will lead to adverse consequences.

C. Nirider, Davis & Leo demonstrate that officers routinely use “rights-invocation discouragement scripts”

Their forensic-psychology framework identifies a recognized interrogation pattern: (1) recite the right; (2) describe negative consequences of invoking; (3) portray invocation as unavailable in practice; (4) emphasize the need for the suspect’s “side.” That script is precisely what unfolded in Rivera’s case.

III. SA Foxtrot’s Interrogation Used Every Element of Active Discouragement

A. He paired the warning with repeated assertions that the investigators “need” Rivera’s side

SA Foxtrot told Rivera:

“I want to stress to you…it is super important that we get your side of the story.”

RIVERA_202400304_UNPUB

“Commanding officers are more understanding when they’ve got the full picture.”

Psychologically, this tactic creates a normative pressure to talk, implying that counsel interrupts the suspect’s ability to obtain leniency or understanding. Cassell and White identify this as a classic discouragement strategy: the officer reframes the suspect’s legal protection as an obstacle to the suspect’s personal goals.

B. He reframed the right to counsel as effectively unavailable at NCIS

When Rivera expressed confusion about Right #3—exactly the moment Miranda is meant to protect—Foxtrot responded:

“It’s not like the shows…we don’t do that…If you lawyer, we won’t have a conversation with you…we’ll just go with what we’ve got.”

This “explanation” delivered three discouraging messages simultaneously:

Counsel is not a real option (“we don’t do that”).
Invoking counsel ends any ability to give “your side.”
The government will rely on damaging evidence uncontested.

Nirider et al. identify this specific pattern as a rights-invocation discouragement script, intended to portray counsel as unavailable or counterproductive.

Leo’s work shows that suspects interpret such statements as warnings that invocation leads to adverse consequences, not as neutral information.

C. He tied invocation to negative outcomes (missed opportunity, no explanation, no context)

By telling Rivera that invocation means “we basically won’t have a conversation with you,” Foxtrot implied that the right to counsel strips the suspect of the opportunity to mitigate the case, a false suggestion that researchers identify as coercively influential.

D. He leveraged Rivera’s uncertainty at the exact moment he sought clarification

Rivera said, “I’m a little iffy on three” (right to counsel).

Rather than clarify neutrally—as required by Miranda and Edwards—Foxtrot:

Minimized the right (“it’s not like the shows”),
Described invocation as futile,
Asserted NCIS “does not” call lawyers, and
Framed invocation as ending the suspect’s chance to tell his story.

Psychological studies show that suspects who express uncertainty (“iffy on three”) are the most susceptible to discouraging cues. This moment—where a suspect equivocates—triggers what the literature calls active discouragement pressure. The officer uses that moment of cognitive instability to redirect the suspect toward waiver.

E. He transformed a constitutional right into a self-defeating choice

By saying “that’s not what we do” and that invocation prevents Rivera from presenting the “full picture,” Foxtrot turned the right to counsel into a strategic disadvantage. According to Leo and Kassin, suspects universally interpret this as a cue that invocation equals guilt or “making things worse.”

Active discouragement does not require an explicit lie. It works through framing and implication—exactly the techniques used here.

IV. These Psychological Techniques Undermined the Knowing and Intelligent Nature of the Waiver

A. A waiver is not knowing when the suspect believes the right does not apply in practice

Rivera’s affidavit stated:

“I believed the right…only applies to civilian law enforcement, not NCIS because it’s not what we do.”

That belief was the intended result of Foxtrot’s discouragement script. The literature uniformly warns that suspects often conclude that rights “don’t apply” or “cannot actually be used” when officers frame invocation as futile.

Cassell expressly flags this interpretive error as the consequence of discouraging warnings.

Nirider & Davis show that suspects routinely misunderstand rights as “symbolic” or “technical” when interrogators describe invocation as impractical or disadvantageous.

B. The NMCCA’s reasoning ignored the psychological reality of how suspects process discouraging cues

The opinion assumes Rivera’s intelligence, age, and test scores offset the discouraging message. But the psychological literature rejects that assumption. Research consistently finds that even highly intelligent adults misinterpret rights when officers deliver them with discouraging commentary.

The Court’s focus on whether Foxtrot “lied” misses the operative coercive mechanism: discouragement works precisely because it avoids outright falsehood while creating a false impression.

Miranda protects against misleading impressions, not merely factual errors.

C. The military judge’s emphasis on accuracy (“nothing untrue was said”) is misplaced

Active-discouragement techniques often rely on literally true but strategically misleading statements.
Examples:

“We can’t call a lawyer for you” may be true regarding agency policy—
but misleading because it implies the right is functionally unavailable.
“If you lawyer, we won’t have a conversation” is literally true—
but misleading because termination of questioning is a protection, not a harm.

White and Leo identify this precise phenomenon: the officer uses “true” statements to create false psychological inferences.

The research consistently holds that such tactics materially impair a suspect’s ability to make a reasoned rights decision.

V. When Applied to Rivera, the Literature Compels Suppression

A. Rivera demonstrated his confusion (“iffy on three”), and Foxtrot exploited it

Rather than clarify neutrally, Foxtrot used that moment to push Rivera toward waiver, establishing the exact causal mechanism scholars describe.

B. The record confirms that Rivera formed a mistaken belief that the right to counsel did not really apply

Rivera swore that he believed NCIS does not follow the right-to-counsel procedure. That is the precise misinterpretation predicted by the research.

C. The voluntariness analysis must account for psychological coercion, not just overt pressure

Active discouragement functions as psychological coercion, undermining the suspect’s ability to use rights designed to protect him. Miranda’s purpose is not merely to prohibit threats; it is to prevent subtle methods of persuasion that effectively nullify the warning.

Conclusion

The interrogation here was not a neutral rights advisement. It was an active discouragement sequence, identical to those documented in the leading law-review scholarship and psychological research. SA Foxtrot’s statements:

reframed invocation as futile,
implied invocation deprived Rivera of favorable treatment,
suggested counsel was unavailable at NCIS,
emphasized the need for Rivera’s “side,” and
discouraged invocation exactly when Rivera expressed confusion.

Under the principles identified by Cassell, White, Leo, Nirider, and Kassin, these tactics nullify the knowing and intelligent character of the waiver, even if they include technically correct statements. The research shows that a suspect exposed to such discouragement cannot meaningfully understand the right he is purportedly waiving.