c. Suppose the police want to question the suspect about a different
crime? This issue was decided by the Supreme Court in U.S. v. Roberson, 486 US
675, 100 LEd2d 704 108 SCt 2093 (1988). The court held that the Edwards rule
applied equally to interrogation regarding a separate offense, even if
conducted by a different law enforcement officer. It ruled that police have a
duty to determine whether or not a suspect has previously requested a lawyer
and, if so, to honor that request. The failure to satisfy that duty "cannot be
justified by the lack of diligence of a particular officer."
d. In U.S. v. Fassler, 29 MJ 193 (CMA, 1989), the court held that Roberson
and its preventive rules are applicable to trials by court-martial. The court
stated, "Therefore, regardless of MRE 305(e), a suspect who requests counsel
during custodial interrogation may not thereafter be interviewed at the
initiative of authorities about any offense." Remember, we are talking about
actions of our government.
The court did indicate that its ruling did not
apply to a request for counsel made with respect to a foreign custodial
interrogation and that such did not preclude questioning by American
e. As a protective measure, guidance from the Judge Advocate General of
the Army is that a suspect should be asked, "Have you previously requested a
lawyer after being read your rights?" If the answer is "yes" the interrogator
should then ask, "When and where?" If the prior rights advisement was within
30 days, the interrogator should consult with the servicing prosecutor to
determine if Minnick and Fassler apply. If they do apply, the interrogator may
not proceed to question the suspect without having the lawyer actually present.
There is an issue of whether Minnick and Fassler apply if the suspect has been
released from custody after his first rights advisement and the second rights
advisement. The Court of Military Appeals chose not to answer this question
directly in U.S. v. Grooters, 39 M.J. 269 (C.M.A. 1994).
In that case the
accused tried to kill an American civilian whom he believed to have made
homosexual advances on him and committed a "homosexual rape" on the accused's
These activities took place in the civilian's quarters in
Germany. Before the civilian woke up, the accused poured lighter fluid on the
civilian's bed and set it on fire. The civilian awoke and put out the fire,
but due to the "embarrassing situation" he declined to report the incident to
The accused's fellow soldier did report the
"homosexual rape" to CID. CID Agent G. advised the accused of his rights for
misprison of a felony which the accused knowingly and voluntarily waived on 29
July 1989. The accused gave a statement recounting the civilian's homosexual
advances on him and the "rape" of his friend. He never mentioned setting the
apartment on fire. On 8 August 1989, CID Agent G. readvised the accused of his
rights for misprison of a felony. This time the accused requested a lawyer.
Meanwhile, by late August the civilian had reported the incident because he
discovered his wallet had been taken that same time on the morning of the fire
in his apartment. He admitted to consensual sodomy and told about waking up
with his bed on fire. Also, he reported the theft of his wallet. On 30 August
1989, CID Agent W., who had taken over for Agent G., called in the accused and
advised him of his rights for aggravated arson, attempted murder, and larceny.
Agent W. asked the accused if he had ever been advised of his rights before for