Presence of Counsel as a Predicate to Waiver
- Custodial Interrogation [Mil. R. Evid. 305(e)(1)].19 Absent a valid waiver of counsel under Mil. R. Evid. 305(g)(2)(B),20 when an accused or person suspected of an offense is subjected to custodial interrogation under circumstances described under Mil. R. Evid. 305(d)(1)(A)21 of this rule, and the accused or suspect requests counsel, counsel must be present before any subsequent custodial interrogation may proceed. 19 The current version of Mil. R. Evid. 305 essentially replaced the old notice to counsel provisions that originated with United States v. McOmber , 1 M.J. 380 (C.M.A. 1976). Under McOmber (as implemented by the former version of Mil. R. Evid. 305(e)), when an investigator intended to question an accused regarding an offense and knew or reasonably should have known the accused had counsel with respect to that offense, counsel had to be notified and given a reasonable time in which to attend. This notice to counsel provision was viewed as totally non- waivable until the decision in United States v. LeMasters , 39 M.J. 490 (C.M.A. 1994). In LeMasters , the court held that the McOmber rule was designed to protect the right to counsel when the police initiate the interrogation. Accordingly, if the suspect initiates discourse and prosecution can show the suspect was aware of his right to have his counsel notified and present, but that he affirmatively waived those rights, then a valid waiver can be found. This case left open the question of whether police initiated questioning was permitted in light of the Supreme Court decisions in Minnick v. Mississippi , 498 U.S. 146 (1990), McNeil v. Wisconsin , 501 U.S. 171 United States v. Finch , 64 M.J. 118 (C.A.A.F. 2006). The McOmber rule requiring notification of counsel prior to questioning a suspect who has previously asserted his right to counsel under the Fifth Amendment is overruled. Mil. R. Evid. 305(e) provides for only two situations where counsel must be present, absent waiver: (1) custodial interrogations (e.g., Edwards rule); and (2) post-preferral interrogation (where the suspect’s Sixth Amendment right to counsel has been invoked and the questions concern the offense(s) charged).
- Post-preferral interrogation. Mil. R. Evid. 305(g)(2)(c) provides that if a person makes a valid request for counsel subsequent to the preferral of charges (e.g., Sixth Amendment request for counsel), any subsequent waiver of that right is invalid unless the prosecution can show that the accused initiated the communication leading to the waiver. But see Montejo v. Louisiana , 556 U.S. 778 (2009). a. The rules concerning invocation of the Sixth Amendment right to counsel set limits on subsequent interrogation concerning the charged offense or offenses. b. However, the Sixth Amendment right to counsel is “offense specific.” Law enforcement may question a suspect on an offense that has not been preferred/indicted. The test to determine whether there are two different offenses is whether each provision requires proof of a fact that the other does not (i.e., the Blockburger test). Texas v. Cobb , 532 U.S. 162 (2001).