2008 edition - Fort Sam Houston - U.S. Army

App. 22, M.R.E. 305(e) APPENDIX 22
Court’s decision in Minnick. In that case, the Court determined
that the Fifth Amendment right to counsel protected by Miranda
v. Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451
U.S. 477 (1981), as interpreted in Arizona v. Roberson, 486 U.S.
675 (1988), requires that when a suspect in custody requests
counsel, interrogation shall not proceed unless counsel is present.
Government officials may not reinitiate custodial interrogation in
the absence of counsel whether or not the accused has consulted
with his attorney. Minnick, 498 U.S. at 150-152. This rule does
not apply, however, when the accused or suspect initiates reinterrogation
regardless of whether the accused is in custody. Minnick,
498 U.S. at 154-155; Roberson, 486 U.S. at 677. The impact of a
waiver of counsel rights upon the Minnick rule is discussed in the
analysis to subdivision (g)(2) of this rule. Subdivision (e)(2) follows
McNeil and applies the Sixth Amendment right to counsel to
military practice. Under the Sixth Amendment, an accused is
entitled to representation at critical confrontations with the government
after the initiation of adversary proceedings. In accordance
with McNeil, the amendment recognizes that this right is
offense-specific and, in the context of military law, that it normally
attaches when charges are preferred. See United States v.
Jordan, 29 M.J. 177, 187 (C.M.A. 1989); United States v. Wattenbarger,
21 M.J. 41 (C.M.A. 1985), cert. denied, 477 U.S. 904
(1986). Subdivision (e)(2) supersedes the prior notice to counsel
rule. The prior rule, based on United States v. McOmber, 1 M.J.
380 (C.M.A. 1976), is not consistent with Minnick and McNeil.
Despite the fact that McOmber was decided on the basis of
Article 27, U.C.M.J., the case involved a Sixth Amendment claim
by the defense, an analysis of the Fifth Amendment decisions of
Miranda v. Arizona, 384 U.S. 436 (1966), and United States v.
Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967), and the Sixth
Amendment decision of Massiah v. United States, 377 U.S. 201
(1964). Moreover, the McOmber rule has been applied to claims
based on violations of both the Fifth and Sixth Amendments. See,
e.g. United States v. Fassler, 29 M.J. 193 (C.M.A. 1989). Minnick
and McNeil reexamine the Fifth and Sixth Amendment decisions
central to the McOmber decision; the amendments to subdivision
(e) are the result of that reexamination.
(f) Exercise of rights. Rule 305(f) restates prior law in that it
requires all questioning to cease immediately upon the exercise of
either the privilege against self-incrimination or the right to counsel.
See Michigan v. Mosely, 423 U.S. 96 (1975). The Rule
expressly does not deal with the question of whether or when
questioning may be resumed following an exercise of a suspect’s
rights and does not necessarily prohibit it. The Committee notes
that both the Supreme Court, see e.g., Brewer v. Williams, 480
U.S. 387 (1977); Michigan v. Mosely, 423 U.S. 96 (1975), and
the Court of Military Appeals, see, e.g., United States v. Hill, 5
M.J. 114 (C.M.A. 1978); United States v. Collier, 1 M.J. 358
(C.M.A. 1976) have yet to fully resolve this matter.
1994 Amendment: The amendment to subdivision (f) clarifies
the distinction between the rules applicable to the exercise of the
privilege against self-incrimination and the right to counsel. Michigan
v. Mosley, 423 U.S. 96 (1975). See also United States v.
Hsu, 852 F.2d 407, 411, n.3 (9th Cir. 1988). The added language,
contained in (f)(2), is based on Minnick v. Mississippi, 498 U.S.
146 (1990), and McNeil v. Wisconsin, 501 U.S. 171 (1991). Consequently,
when a suspect or an accused undergoing interrogation
exercises the right to counsel under circumstances provided for
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under subdivision (d)(l) of this rule, (f)(2) applies the rationale of
Minnick and McNeil requiring that questioning must cease until
counsel is present.
(g) Waiver. The waiver provision of Rule 305(g) restates current
military practice and is taken in part from Para. 140 a(2) of the
1969 Manual.
Rule 305(g)(1) sets forth the general rule for waiver and follows
Miranda v. Arizona, 384 U.S. 436, 475 (1966). The Rule
requires that an affirmative acknowledgment of the right be made
before an adequate waiver may be found. Thus, three waiver
questions are required under Rule 305(g):
Do you understand your rights?
Do you want a lawyer?
Are you willing to make a statement?
(h) Non-military interrogations. Para. 140 a(2) of the 1969 Manual,
which governed civilian interrogations of military personnel
basically restated the holding of Miranda v. Arizona, 384 U.S.
436 (1966). Recognizing that the Supreme Court may modify the
M i r a n d a r u l e , t h e C o m m i t t e e h a s u s e d t h e l a n g u a g e i n R u l e
305(h)(1) to make practice in this area dependent upon the way
the Federal district courts would handle such interrogations. See
Article 36.
Rule 305(h)(2) clarifies the law of interrogations as it relates to
interrogations conducted abroad by officials of a foreign government
or their agents when the interrogation is not conducted,
instigated, or participated in by military personnel or their agents.
Such an interrogation does not require rights warnings under
subdivisions (c) or (d) or notice to counsel under subdivision (e).
The only test to be applied in such a case is that of common law
voluntariness: whether a statement obtained during such an interrogation
was obtained through the use of “coercion, unlawful
influence, or unlawful inducement.” Article 31(d).
Whether an interrogation has been “conducted, instigated, or
participated in by military personnel or their agents” is a question
of fact depending on the circumstances of the case. The Rule
makes it clear that a United States personnel do not participate in
an interrogation merely by being present at the scene of the
interrogation, see United States v. Jones, 6 M.J. 226 (C.M.A.
1979) and the Analysis to Rule 311(c), or by taking steps which
are in the best interests of the accused. Also, an interrogation is
not “participated in” by military personnel or their agents who act
as interpreters during the interrogation if there is no other participation.
See Rule 311(c). The omission of express reference to
interpreters in Rule 305(h)(2) was inadvertent.
Rule 306 Statements by one of several accused
Rule 306 is taken from the fifth rule.subparagraph Para. 140 b
of the 1969 Manual and states the holding of Bruton v. United
States, 391 U.S. 123 (1968). The remainder of the associated
material in the Manual is primarily concerned with the co-conspirator’s
exception to the hearsay rule and has been superseded
by adoption of the Federal Rules of Evidence. See Rule 801.
When it is impossible to effectively delete all references to a
co-accused, alternative steps must be taken to protect the coaccused.
This may include the granting of a severance.
The Committee was aware of the Supreme Court’s decision in