entitled to representation at critical confrontations with the government after
the initiation of adversary proceedings.
In accordance with McNeil, the
amendment recognizes that this right is offense-specific and, in the context of
military law, that it normally attaches when charges are preferred. See U.S.
v. Jordan, 29 MJ 177, 187 (CMA, 1989); U.S. v. Wattenbarger, 21 MJ 41 (CMA,
1985), cert. denied, 477 US 904 (1986).
MRE 305(e)(2) supersedes the prior
notice to counsel rule.
The prior rule based on U.S. v. McOmber, 1 MJ 380
(CMA, 1976), is not consistent with Minnick and McNeil. Despite the fact that
McOmber was decided on the basis of Article 27, UCMJ, the case involved a Sixth
Amendment claim by the defense, an analysis of the Fifth Amendment decisions of
Miranda v. Arizona, 384 US 436 (1966), and U.S. v. Tempia, 16 USCMA 629, 37 CMR
249 (1967), and the Sixth Amendment decisions of Massiah v. U.S., 377 US 201
Moreover, the McOmber rule has been applied to claims based on
violations of both the Fifth and Sixth Amendments. See, e.g., U.S. v. Fassler,
29 MJ 193 (CMA, 1989).
Minnick and McNeil reexamine the Fifth and Sixth
Amendment decisions central to the McOmber decision; the amendments to MRE
305(e) are the result of that reexamination.
Commanders and law enforcement officers must also be aware of and
understand MRE 305(g)(2)(B) which is a new rule and provides that an accused's
waiver of the Fifth Amendment right to counsel, after having previously
exercised that right at an earlier custodial interrogation is presumptively
invalid, unless the government can demonstrate that: 1. The accused initiated
the communication leading to the waiver, or 2. The accused's freedom has not
been restricted by confinement, or other means, during the period between the
request for counsel and the subsequent waiver.
The new MRE 305(g)(2)(B)
conforms the military practice with the Supreme Court's decision in Minnick v.
Mississippi, 498 US 146 (1990).
In that case, the Court provided that an
accused or suspect can validly waive his Fifth Amendment right to counsel,
after having previously exercised that right at an earlier custodial
interrogation, by initiating the subsequent interrogation leading to the
This is reflected in MRE 305(g)(2)(B)(i).
305(g)(2)(B)(ii) establishes a presumption that a coercive atmosphere exists
that invalidates a subsequent waiver of counsel rights when the request for
counsel and subsequent waiver occur while the accused or suspect is in
See McNeil v. Wisconsin, 501 US 171 (1991); Arizona v.
Roberson, 486 US 675 (1991). The presumption can be overcome when it is shown
that there occurred a break in custody which sufficiently dissipated the
coercive environment. See U.S. v. Schake, 30 MJ 314 (CMA 1990).
In U.S. v. Vaughters, 42 MJ 564 (AFCCA, 1995), interrogation initiated by
Air Force OSI agents after accused had requested counsel during an earlier
interview did not violate accused's right to counsel where accused was released
from custody immediately after he requested to speak with an attorney, and he
did not contact an attorney for assistance with the accusation for the next 19
days, despite being on an Air Force installation on which two military defense
counsel were located. During the 19 day period, accused was neither in custody
to any badgering by police. Despite these facts, he did seek the assistance of
counsel. The Air Force Court stated that they did not believe that the Supreme
Court meant to find an accused in SSgt