following an invocation of the right to counsel by a suspect who is in custody.
The Minnick court held that nothing short of the actual presence of the
accused's attorney will suffice to protect the accused's 5th amendment right to
counsel, once invoked.
c. The effect of Minnick on military practice seems broad because military
courts
have
interpreted
very
liberally
the
meaning
of
"custodial
interrogation," -- applying both an "official questioning" test and a "position
of authority" test. See, e.g., U.S. v. Seay, 1 MJ 223 (CMA 1975) and U.S. v.
Dohle, 1 M.J. 223 (CMA 1975).
d. The CID Command has directed a cautious response to Minnick, stating
that a suspect who has requested counsel for any offense should not be
reinterrogated without the presence of counsel.
Investigators should not
proceed with questioning of a suspect who has requested counsel for any offense
without first consulting with the local trial counsel for guidance.
3. What is meant by "further interrogation?" Edwards held that when a suspect
requests counsel, he is not subject to further "interrogation."
In U.S. v.
Peyton, 10 MJ 387 (CMA, 1981), a CID agent immediately stopped questioning a
suspect who said he wanted a lawyer.
The agent, however, "allowed the
(suspect) to remain in his office while he completed a Criminal Investigation
Division (CID) Form 44, which is a personal data card that the CID requires an
agent or investigator to complete after interviewing a suspect."
The
completion of the form did not require the suspect to answer any questions. As
the agent was completing the paperwork, the suspect asked him "how serious of
an incident this was," and subsequently made incriminating statements.
a. The court concluded that filling out the form was not a violation of
the suspect's right to counsel. "The completion of the CID personal data form
in the appellant's presence was only a circumstance that is normally attendant
to arrest and custody." It was not a form of interrogation. This is similar
to the outcome in U.S. v. Roa, 20 MJ 867 (AFCMR, 1985), Aff'd, 24 MJ 297 (CMA,
1987). After the suspect had been apprehended and after he said he wanted a
lawyer, the interview was properly terminated. The suspect, however, was asked
to consent to a search, which he did. The court held that Edwards prohibited
further "interrogation."
Consent to a search is not defined as either
"interrogation" or a "statement."
b. Compare those cases with U.S. v. Muldoon, 10 MJ 254 (CMA, 1981).
There, the suspect said he wanted an attorney. The interview was terminated
and the suspect was placed in the detention cell. Meanwhile, the investigators
obtained a statement from an accomplice, which implicated the suspect.
The
agents then returned to the suspect and told him that his accomplice had
confessed. They read his entire statement to the accused, who then confessed.
On appeal, the court held that this was an "interrogation technique." It was,
in fact, "a time-honored technique to elicit a statement -- namely, informing
the suspect that he had been implicated by someone else." Since the suspect
had been interrogated after he requested an attorney, the police conduct was
held to have violated his right to counsel.
MP1020
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