preferral of charges or were the cause of the imposition of pretrial restraint"
(MRE 305(d)(1)(B)). In such situations, the Sixth Amendment right to counsel
requires such warning. U.S. v. Henry, 447 US 264, 65LEd2d 115, 100 SCt. 2183
(1980).
In the military, MRE 305(d)(2) states that the suspect's right to
counsel exists "at no expense to the person and without regard to the person's
indigency (lack of funds)."
2. The meaning of "custodial interrogation." As we have seen, Article 31 is
triggered when a suspect is questioned by one acting in an official capacity.
Article 31, however, does not include the suspect's right to counsel.
That
right, instead, comes from the Miranda decision, which held the right to be
triggered by "custodial interrogation."
a. In one case, at 0400 hours, the suspect was asleep at home in his room
in a boardinghouse. Four police officers arrived and were admitted by a woman
who told them the suspect was asleep upstairs. The four entered the bedroom
and questioned the suspect about a murder.
They did not advise him of his
rights. They did, however, candidly admit that he "was not free to go where he
pleased but was under arrest." Nonetheless, they proceeded to interrogate him.
On appeal, the Supreme Court acknowledged that the suspect was questioned "on
his own bed, in familiar surroundings." Still, however, he was in custody. He
was under arrest, so clearly he had been "deprived of his freedom of action in
any significant way." Orozco v. Texas, 394 US 324, 22LEd2d 311, 89 SCt. 1095
(1969).
b. Compare the above case with Oregon v. Mathiason, 429 US 492, 50
L.Ed.2d 714 94 SCt 711 (1977).
There, the suspect was on parole, and was
thought to have been responsible for a recent burglary.
After several
unsuccessful attempts to contact the suspect, a police officer left his card at
the suspect's apartment with a note asking him to call "because I would like to
discuss something with you."
The next afternoon, the suspect called.
The
officer asked the suspect where it would be convenient to meet, and the suspect
said he had no preference. The officer then asked the suspect to meet him at
the state patrol office at 5:00 P.M., which was located about two blocks from
the suspect's home. The meeting was described as follows:
"The officer met defendant in the hallway, shook hands, and took him
into an office.
The defendant was told he was not under arrest.
The door was closed. The two sat across a desk... The officer told
defendant he wanted to talk to him about a burglary."
c. The Supreme Court decided that the suspect was not subjected to
custodial interrogation; consequently, advice regarding his right to counsel
was not necessary. The suspect was not in custody and had not been deprived of
his freedom of action in any significant way: "There is no indication that the
questioning took place in a context where (the suspect's) freedom to depart was
restricted in any way. He came voluntarily to the police station, where he was
immediately informed that he was not under arrest." The simple fact that the
questioning took place at the police station did not itself make it "custodial
interrogation." Indeed, "Miranda warnings are required only
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