and the JDST investigators. It was a failure that was "unreasonable and should
have been and could easily have been prevented."
After having clearly
requested a lawyer, the suspect had been subjected to further interrogation.
The case then went back to the Court of Military Appeals, and the confession
was ruled inadmissible. U.S. v. Harris, 21 MJ 173 (CMA, 1985). Consequently,
the investigator must act with caution in this area.
There are, of course,
cases where the subsequent investigators would have no possible way of knowing
what had happened earlier in a case.
As an example, the original police
officer may have died. Barring unusual circumstances, however, the courts will
strictly apply the Edwards rule. Do not gamble on the chance that the courts
will find some exception to it.
Be sure to act carefully, and avoid any
possibility that the courts will label your conduct "negligent."
7. When has counsel been "made available?" The bright line rule, is once an
in-custody suspect has requested counsel, all questioning must cease until
counsel is actually present. See Minnick, discussed above in PART L, "How to
Handle a Nonwaiver."
PART N - PRESENCE OF COUNSEL/RIGHT TO COUNSEL
1994 Amendments to the Military Rules of Evidence deleted the old MRE
305(e), Notice to Counsel, in its entirety.
Further, the frequently cited
court-martial case of U.S. v. McOmber, 1 MJ 380 (CMA, 1976), regarding notice
to counsel requirements imposed on law enforcement officers is no longer valid
law and should not be followed.
MRE 305(e) was renamed Presence of Counsel and was amended to conform
military practice with the Supreme Court's decisions in Minnick v. Mississippi,
498 US 146 (1990) and McNeil v. Wisconsin, 501 US 171 (1991). MRE 305(e) was
subdivided to distinguish between the right to counsel under the Fifth
Amendment (custodial interrogation) and Sixth Amendment (post-preferral
MRE 305(e)(1) requires, if an accused during custodial
interrogation requests counsel, counsel must be present before any subsequent
interrogation may proceed. MRE 305(e)(2) provides that if an accused during a
post-preferral interrogation requests counsel, counsel must be present before
any subsequent interrogation concerning that offense may proceed.
In Minnick, the Supreme Court determined that the Fifth Amendment right to
counsel protected by Miranda v. Arizona, 384 US 436 (1966) and Edwards v.
Arizona, 451 US 477 (1981), as interpreted in Arizona v. Roberson, 486 US 675
(1988), requires that when a suspect in custody requests counsel, interrogation
shall not proceed unless counsel is present.
Government officials may not
reinitiate custodial interrogation in the absence of counsel whether or not the
accused has consulted with his attorney.
Minnick, 498 US at 150-152.
rule does not apply, however, when the accused or suspect initiates
reinterrogation regardless of whether the accused is in custody. Minnick, 498
US at 154-155; Roberson, 486 US at 677.
MRE 305(e)(2) follows McNeil and applies the Sixth Amendment right to
counsel to military practice. Under the Sixth Amendment, an accused is