discourse and prosecution can show the subject was aware of his right to have his counsel notified and present,
but that he affirmatively waived those rights, then a valid waiver under MRE 305(g)(1) can be found. It should be
noted, however, that the restructuring of MRE 305 under Change 7 to the MCM completely removed the
McOmber Notice to Counsel requirement. The affect of this removal has not yet been felt in the case law.
Therefore, depending upon the circumstances, once a subject invokes his right to remain silent or requests an
attorney, you may be able to reinitiate questioning.
1. If the subject is not being subjected to custodial interrogation and charges have not been preferred and he:
a. Invokes his right to silence, questioning must immediately cease. MRE 305(f)(1). The government
may reinitiate questioning after a significant period of time. Michigan v. Mosley, 423 US 96, 46 L.Ed 2d 313, 96
S Ct 321 (1975).
b. Requests an attorney,
(1) questioning must cease until counsel is present. MRE 305(f)(2); Minnick v. Mississippi, 498
U.S. 146 (1990).
(2) The subject may reinitiate contact and affirmatively waive his right to have counsel present. U.S.
v. LeMasters, 39 MJ 490 (CMA 1994). The investigator should annotate this affirmative waiver in the comments
section of DA Form 3881.
2. If the subject is being subjected to custodial interrogation and he:
a. invokes his right to remain silent, (but does not request an attorney)
(1) questioning must cease immediately.
(2) The government may reinitiate questioning after a significant period of time. Michigan v.
Mosley, 423 US 96, 46 L.Ed 2d 313, 96 S Ct 321 (1975).
b. invokes his right to an attorney,
(1) questioning must cease immediately.
(2) counsel must be present before any subsequent interrogation may proceed. MRE 305(e)(2).
(3) There can be a valid waiver of the right to counsel if the government can show the subject
reinitiated the questioning and there was a break in custody between the request for counsel and the subsequent
waiver. MRE (g)(2)(B).
MP2002
1-32
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