In U.S. v. Henry, (ACCA, 1995), statements made by a 15 year old victim to
medical personnel were not made with the expectation of receiving medical
benefits but for the purpose of facilitating collection of evidence. In dicta,
the court notes, in cases where a medical examination is inextricably
intertwined with a criminal investigation, and where there is no expressed
indication by the "patient" that she had some expectation of receiving a
medical benefit, the burden of establishing medical diagnosis or treatment
exception is a heavy one for the government. The court notes it may be better
practice for CID agents to remain outside the exam room when medical personnel
are conducting the rape protocol exam.
PART I - THE RIGHT TO COUNSEL
1. General.
As we have seen, Article 31, UCMJ, does not itself include a
suspect's right to counsel.
This right, instead, comes from the Supreme
Court's Miranda decision. The point to remember is that the right to counsel
is a separate protection for the accused, one that exists apart from Article
31. It is an equally important right, however, and must be both understood and
observed.
a. In Miranda v. Arizona, 384US 436, 16 L.Ed.2d 694 86 SCt. 1602 (1966),
the Supreme Court held that a suspect has certain procedural rights when he is
subjected to "custodial interrogation."
This was defined as "questioning
initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way."
Before such a person could be interrogated, the court ruled that he "must be
warned that he has a right to remain silent, that any statement he does make
may be used as evidence against him, and that he has a right to the presence of
an attorney, either retained or appointed."
The first two rights, you will
notice, are also contained in Article 31.
b. As for the right to counsel, the court held that if the suspect
indicates that he wishes to consult with an attorney before speaking, then
"there can be no questioning."
The same is true if he so indicates at some
point during the questioning. In other words, the suspect can invoke his right
to counsel at some point during the questioning. The fact that he has answered
some questions does not mean that he is obligated to continue doing so.
In
either situation, the suspect who asks for a lawyer is not subject to further
interrogation in the absence of counsel.
c. Remember, the right to counsel applies to a suspect "while in custody
or otherwise deprived of his freedom of action in any significant way."
In
order to protect the suspect's Fifth Amendment right against self-
incrimination, "the accused must be adequately and effectively appraised of his
rights and the exercise of those rights must be fully honored." Warning the
suspect of his right to remain silent "will show the individual that his
interrogators are prepared to recognize his privilege should he choose to
exercise it."
A warning that anything said can be used against the suspect
"may serve to make the individual more acutely aware that he is faced with a
phase of the adversary system -- that he is not in the presence of persons
acting solely in his interests." Advice regarding the right to counsel is
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