The Fifth Amendment (Miranda) Right to Counsel.
- Mil. R. Evid. 305(e)(1); 305(g)(2)(B).
- The per se rule of Edwards.
a. When a subject has invoked his right to counsel in response to a Miranda warning, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation, even if he has been advised of his rights. “Having expressed his desire to deal with the police only through counsel, the subject is not subject to further interrogation . . . until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona , 451 U.S. 477 (1981); seetr also United States v. Harris , 19 M.J. 331 (C.M.A. 1985) ( Edwards applies to military interrogations).
b. There is no exception to Edwards for police-initiated, custodial interrogations relating to a separate investigation once a suspect has invoked his right to counsel under the Fifth Amendment. “As a matter of law, the presumption raised by a suspect’s request for counsel – that he considers himself unable to deal with the pressures of custodial interrogation without legal assistance – does not disappear simply because the police have approached the suspect, still in custody, still without counsel, about a separate investigation.” Additionally, the fact that the officer conducting the second interrogation does not know of the request for counsel is of “no significance.” Knowledge of the suspect’s invocation is imputed to other officers. Arizona v. Roberson , 486 U.S. 675 (1988).
c. The Edwards requirement that counsel be “made available” means more than an opportunity to consult with an attorney outside the interrogation room. In Minnick v. Mississippi , 498 U.S. 146 (1990), the Supreme Court held “that when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney.” 14 But see McNeil v. Wisconsin , 501 U.S. 171 (1991) (limiting Minnick holding regarding Edwards rule to periods of continuous custody). 14 See Mil. R. Evid. 305(e)(1). In 1994, this subdivision was amended to conform military practice with the Supreme Court’s decision in Minnick.
d. United States v. Mitchell , 51 M.J. 234 (C.A.A.F. 1999). After a clear invocation of his Fifth Amendment right to counsel, the accused was asked by his work supervisor during a brig visit if it was worth committing the alleged misconduct. Even though the accused’s supervisor was not a law enforcement official, the CAAF held that the questioning of the accused in custody, after invocation of his Fifth Amendment right to counsel, violated the protections of Edwards v. Arizona , 451 U.S. 477 (1981).
e. United States v. Gray , 51 M.J. 1 (C.A.A.F. 1999). At trial, the prosecutor introduced the accused’s statements that were made as part of a separate state plea agreement. Prior to making the statements, the accused unambiguously invoked his right to counsel, however, since counsel was present during the interview, the CAAF held that there was no violation of the Fifth Amendment.
f. United States v. Thompson , 67 M.J. 106 (C.A.A.F. 2009). After accused was placed in pretrial confinement and given defense counsel, a CID agent questioned accused without defense counsel notified or present, but after a rights waiver was signed. The CAAF presumed that the confession was obtained in violation of his Fifth Amendment right to counsel, but found the error harmless beyond a reasonable doubt. The confession was not ultimately admitted, except in redacted form by the defense. The confession only contained statements regarding the offenses for which he was acquitted or pled guilty.
- Limits of the Edwards rule.
a. Counsel “made available.” (1) United States v. Schake , 30 M.J. 314 (C.M.A. 1990). Accused who requested counsel during police interrogation could be re- interrogated following a six-day break in continuous custody and a complete rights advisement where accused had a “real opportunity to seek legal advice” during his release. See also United States v. Vaughters , 44 M.J. 377 (C.A.A.F. 1996) (re- interrogating accused who had been released from custody for nineteen days provided meaningful opportunity to consult with counsel). (2) United States v. Faisca , 46 M.J. 276 (C.A.A.F. 1997). During a CID custodial interrogation concerning the theft of government property, the accused invoked his right to counsel. The CID agents conducting the interrogation immediately ceased their questioning. Six months later, a CID agent initiated contact with the accused and arranged for another interrogation. During the later interrogation, the accused affirmatively waived his self- incrimination rights and made a statement. The court found no Edwards violation. (3) United States v. Young , 49 M.J. 265 (C.A.A.F. 1998). A two- day release from custody after the accused invoked his right to counsel was a sufficient break to overcome the Edwards barrier. As such, it was not improper for the government investigator to re-interrogate the accused. The court stated that the two-day break afforded the accused the opportunity “to speak to his family and friends.” (4) United States v. Mosley , 52 M.J. 679 (A. Ct. Crim. App. 2000). A twenty-hour release from custody after the accused invoked his right to counsel was a sufficient break to overcome the
Edwards barrier. Once the government demonstrates by a preponderance of the evidence that the accused had a reasonable break in custody, a presumption exists that during the break the accused had a meaningful opportunity to consult with counsel. The defense then has the burden to overcome the presumption. (5)
Maryland v. Shatzer , 130 S.Ct. 1213 (2010). The Supreme Court held that a fourteen-day period of time is sufficient to overcome the Edwards barrier, regardless of the availability of counsel. The Court also held that post-trial incarceration for an unrelated offense does not trigger “custody” for Miranda /Edwards purposes.
b. Re-initiation by the accused. (1) Edwards does not foreclose finding a waiver of Fifth Amendment protection after counsel has been requested, provided the accused has initiated the conversation or discussions with the authorities. Minnick v. Mississippi , 498 U.S. 146 (1990). (2) Oregon v. Bradshaw , 462 U.S. 1039 (1983). Accused reinitiated communication with police “relating generally to the investigation” by asking, “What is going to happen to me now?” But routine requests for a drink of water or to use a telephone “cannot be fairly said to represent a desire [for] a more generalized discussion relating directly or indirectly to the investigation.” (3) United States v. Bonilla , 66 M.J. 654 (C.G. Ct. Crim. App. 2008) (en banc). While in custody the accused invoked his Fifth Amendment right to counsel and to remain silent. Coast Guard Investigative Service (CGIS) agents later entered the interview room and discussed the case between themselves hoping that the accused would re-initiate conversations about the case. This tactic was successful. The CGCCA ruled this was not an interrogation or functional equivalent of an interrogation. No threats were made, there were no compelling pressure put on the appellant beyond custody, pleas to conscience, or other ploys the agents knew or were reasonably likely to elicit an incriminating response. [Note: Opinion was a 3-1-2 decision with the three dissenting judges finding that the accused did not re-initiate further communications. The majority opinion plus one dissenting judge agree that the agents’ actions were not an interrogation.] (4)
United States v. Watkins , 32 M.J. 1054 (A.C.M.R. 1991), aff’d , 34 M.J. 344 (C.M.A. 1992). Accused reinitiated conversation by asking CID if he should get a civilian attorney and how much time the agent thought the accused might get. (5) United States v. McDavid , 37 M.J. 861 (A.F.C.M.R. 1993). Despite previous invocation of his right to counsel, accused initiated the conversation with OSI agents by asking if he could explain something.
c. Waiver after re-initiation by the accused. (1) Oregon v. Bradshaw , 462 U.S. 1039 (1983). If initiation by the accused is found, then a separate inquiry must be made whether, on the totality of the circumstances, the accused voluntarily waived his rights. (2) United States v. McLaren , 38 M.J. 112 (C.M.A. 1993). In reinitiating conversation with interrogators by answering a question asked before his rights invocation, accused impliedly waived previously invoked Fifth Amendment right to counsel.
d. Foreign Police Exception. (1) Edwards protections are not triggered by request for counsel to a foreign official because there is an overseas exception to Edwards rule. In review of cases in this area, the CAAF has focused on the suspect’s state of mind, just as the Supreme Court did in Roberson . A suspect may be willing to cooperate without counsel during a U.S. interview, while added intimidation in a foreign interview may make him unwilling to do so. (2) United States v. Coleman , 26 M.J. 451 (C.M.A. 1988). U.S. investigators had actual knowledge that Coleman had requested counsel during questioning by the German police, but Edwards bar did not apply to initial interrogation by U.S. authorities. However, there must be a complete rights advisement and waiver before the U.S. interrogation.15
- When are requests for counsel effective?
a. Premature invocations. (1) The right to counsel arises upon initiation of custodial interrogation. (2) But, where a suspect is in custody and requests counsel from a person in apparent authority shortly before initiation of the interrogation, “it is artificial to draw a distinction between the formal interview . . . and these events which led up to it.”16 (3) McNeil v. Wisconsin , 501 U.S. 171 (1991). In dicta, Justice Scalia opines that peremptory counsel elections are invalid. “We have never held that a person can invoke his Miranda rights ‘anticipatorily’ in a context other than custodial interrogation.” (4) United States v. Schroeder , 39 M.J. 471 (C.M.A. 1994). Even though under arrest (civilian law enforcement agents), accused’s request to speak to an attorney before non-consensual urinalysis was “too little and too early” to qualify as invocation of his Miranda right to counsel. Accused had not been read his Miranda warnings or subjected to custodial interrogation. (5) United States v. Kendig , 36 M.J. 291 (C.M.A. 1993). Electing to consult counsel during Article 15 proceeding: 1) does not constitute invoking Fifth Amendment right to counsel; 2) does not invoke a Sixth Amendment right to counsel; and, 3) does not require notice to counsel under Mil. R. Evid. 305(e), since subsequent interview concerned unrelated offenses.
See also United States v. Thomas , 39 M.J. 1094 (A.C.M.R. 1994) (advising interrogator of representation by civilian attorney on unrelated matter does not trigger Edwards requirements). (6) Montejo v. Louisiana , 556 U.S. 778 (2009). The majority, written by Justice Scalia, again asserts that “[w]e have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation.’”
McNeil , 501 U.S. at 182, n.3. 15 See also United States v. Dock , 40 M.J. 112 (C.M.A. 1994) (accused’s pretrial statements to U.S. military investigators were admissible after he requested U.S. counsel while under German custody even though U.S. investigators were present when accused requested counsel during German interrogations); United States v. Hinojosa , 33 M.J. 353 (C.M.A. 1991). 16 United States v. Goodson
, 18 M.J. 243 (C.M.A. 1984), vacated , 471 U.S. 1063 (1985) (remanded “for further consideration in light of
Smith v. Illinois , 469 U.S. 91 (1984)”), rev’d per curiam , 22 M.J. 22 (C.M.A. 1986), modified , 22 M.J. 247 (C.M.A. 1986), on remand , 22 M.J. 947 (A.C.M.R. 1986).
b. Ambiguous request = equivocal request = no Edwards protection. (1) Once a suspect initially waives his
Miranda rights and agrees to submit to custodial interrogation without the assistance of counsel, only an unambiguous request for counsel will trigger the Edwards requirements. (2) United States v. Davis , 36 M.J. 337 (C.M.A. 1993), aff’d , 512 U.S. 452 (1994). Following an initial waiver, Davis stated to Naval Investigative Service (NIS) agents: “Maybe I should talk to a lawyer.” The CMA ruled this ambiguous comment failed to invoke Fifth Amendment right to counsel, and NIS agent properly clarified ambiguous comment before continuing. The Supreme Court ruled that clarification of ambiguous counsel requests is not legally required. The invocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed as an expression of a desire for the assistance of an attorney. If a suspect makes a reference to an attorney that is ambiguous or equivocal, questioning need not be terminated. A request is ambiguous if a reasonable officer in light of the circumstances would have understood only that the suspect
might be invoking the right to counsel.17 (3) United States v. Morgan , 40 M.J. 389 (C.M.A. 1994). Following initial waiver of Article 31 and counsel rights, accused made statement, but then asked “[c]an I still have a lawyer or is it too late for that?” The CMA rules that the accused’s statement was an equivocal or ambiguous request for counsel. (4) United States v. Vandewoestyne , 41 M.J. 587 (A.F. Ct. Crim. App. 1994). Evidence established under a totality of the circumstances, that accused made a knowing and intelligent waiver of his right to counsel and the right to remain silent at the initiation of the interview. Accused asking investigators if they thought he needed a lawyer was not a sufficiently clear statement that could have been understood as a request for counsel. Investigators nevertheless clarified the request, and accused then waived his right to counsel. 17 A statement either is an assertion of the right to counsel, or it is not. In Smith v. Illinois , 469 U.S. 91 (1984), the Court found that the following interchange contained a request for counsel, stating that “[a]n accused’s post-request responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself.” Q: You have a right to a lawyer. A: Uh, yeah, I’d like to do that. Q: If unable to pay, one will be appointed. Do you want a lawyer? A: Yeah and no, uh, I don’t know what’s, really. (5)
United States v. Nadel , 46 M.J. 682 (N-M. Ct. Crim. App. 1997). CID interrogated the accused about indecent acts he allegedly committed. After an initial valid waiver of Article 31(b) and Miranda counsel rights, the accused told CID agents that he would not like to discuss oral sodomy without first receiving advice from a lawyer, but would be willing to answer questions concerning anything else without assistance of counsel. CID did not question Nadel about sodomy but did question him about indecent assault. Thereafter, Nadel made a written confession of the indecent assault. The NMCCA found that the request for a lawyer was “not a clear assertion of the right to have counsel present during the interview.” The court, citing Davis v. United States
, 512 U.S. 452 (1994), held that because it was an ambiguous request for counsel, the CID agent had no duty to stop the interrogation or clarify Nadel’s equivocal request. (6) United States v. Henderson , 52 M.J. 14 (C.A.A.F. 1999). German police apprehended the accused as a suspect in a stabbing incident. While in custody, the German police advised the accused of his rights (under both German law and Article 31(b)), obtained a waiver, and interrogated the accused. The accused denied involvement in the stabbing and eventually asked to continue the interview in the morning. The German police immediately stopped the questioning. Shortly thereafter, while the accused remained in custody, the CID observer, who was present during the initial interview, spoke to the accused in private. He emphasized the importance of telling the truth and that the accused had “nothing to worry about.” The accused indicated he wanted to “tell the truth,” but wanted to talk to a lawyer. Eventually, the accused agreed to make a statement and talk to a lawyer the morning. During the interview, the accused admitted to stabbing one of the victims. Citing Davis , the CAAF held that the accused’s request to talk to a lawyer in the morning was an ambiguous request for counsel and did not invoke the protections of Miranda and Edwards. (7)
United States v. Ford, 51 M.J. 445 (C.A.A.F. 1999). An explosive device was found in the accused’s barracks room during an inspection. Without giving warnings, an investigator questioned the accused at the barracks. When the accused “asked to have a lawyer present, or to talk to a lawyer,” the investigator stopped the questioning. The investigator transported the accused to the CID office and, after obtaining a waiver of rights, questioned the accused again. The accused eventually gave a written confession. During the interview, however, the accused said that he didn’t want to talk and thought he should get a lawyer. The investigator sought clarification and the accused responded that he wanted a lawyer if the investigator continued accusing him of lying. After further clarification, the accused agreed to continue with the questioning. The CAAF found that the accused did not invoke his Fifth Amendment right to counsel during the barracks’ questioning. Further, the court held that accused’s comment about a lawyer during the CID office interrogation was an ambiguous request for a lawyer and did not invoke the Mirandaor Edwards protections. (8) United States v. Delarosa , 67 M.J. 318 (C.A.A.F. 2009). Accused was questioned by civilian law enforcement for homicide charges related to the death of his infant son. After repeatedly telling investigators that he wanted to talk to them, he signed “no” on the form next to the block that read, “I further state that I waive these rights and desire to make a statement.” After investigators attempted to clarify, accused asked for a command representative. Investigators denied this request and left accused alone. Several hours later, accused asked to talk. He was re-adaccuvised of his rights and waived them. The CAAF found the first invocation to be ambiguous, but held that officers could continue to attempt clarify his initial ambiguous invocation and resume questioning at any time. (9) Practice tip: Clarification of ambiguous requests is probably still a good idea. Clarification will preclude later disputes over whether request was ambiguous as a matter of law.
- Sixth Amendment Counsel Rights. Montejo v. Louisiana , 556 U.S. 778 (2009). The Court ruled that
Edwards applies to the Sixth Amendment right to counsel.