2023 (October Term)
United States v. Flanner, 85 M.J. 163 (the Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself; the Supreme Court has interpreted the Fifth Amendment privilege against self-incrimination to encompass two distinct rights: the right to silence and the right to counsel specifically during pretrial questioning).
(in accordance with Miranda (Miranda v. Arizona, 384 US 436 (1966)), if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent, and has the right to consult with a lawyer and to have the lawyer with him during interrogation).
(the Fifth Amendment right to counsel applies only during custodial interrogations; and to be considered in custody for purposes of Miranda (Miranda v. Arizona, 384 US 436 (1966)), a reasonable person in the accused's position must have believed he or she was restrained in a formal arrest or there was a restraint on freedom of movement of the degree associated with a formal arrest).
(to determine whether an individual was subjected to a custodial interrogation for purposes of Miranda (Miranda v. Arizona, 384 US 436 (1966)), courts consider: (1) whether the person appeared for questioning voluntarily, (2) the location and atmosphere of the place in which questioning occurred, (3) the length of the questioning, (4) the number of law enforcement officers present at the scene, and (5) the degree of physical restraint placed upon the suspect).
(in this case, the accused's second interview with two law enforcement agents was not a custodial interrogation, and therefore, he had no Fifth Amendment (or MRE 305(c)(2)) right to counsel during that interview where (1) the accused initiated the interview and voluntarily appeared at the scheduled time, (2) although the agents conducted the interview at a law enforcement office and the accused knew he was a suspect, the interview did not become custodial simply because the questioning took place in a law enforcement office or because the questioned person is one whom the police suspect, (3) the accused joked and laughed with the agents over the course of about two and a half hours, and (4) the accused acknowledged that he could stop the interview at any time, and when questioning concluded and he had nothing more to say, he left; under these circumstances, the atmosphere of the interview would have made it transparent to a reasonable person in the accused's position that he was not subject to a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest; the interview did not contain the inherently compelling pressures with which Miranda (Miranda v. Arizona, 384 US 436 (1966)) was concerned).
(the accused's invocation of his Fifth Amendment right to counsel in his initial law enforcement custodial interrogation did not reasonably carry over to the second non-custodial interview where the law enforcement agents terminated the first interview as soon as the accused indicated that he wanted counsel to be present during questioning and four months intervened before the accused contacted the agents to schedule a second interview; the Fifth Amendment right to counsel did not extend beyond the bounds of the custodial interrogation).
(a person's Sixth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him).
(in the military, the Sixth Amendment right to counsel attaches upon preferral of charges).
(in this case, because no charges had been preferred at the time of the accused's second interview, he had no Sixth Amendment right to counsel during that interview).
(in this case, as a servicemember suspected of an offense subject to questioning by law enforcement in a second non-custodial interview prior to any preferral of charges, the accused was entitled to the protections afforded by Article 31, UCMJ, that is (1) to be informed of the nature of the accusation against him, (2) to be advised of his right to remain silent, and (3) that any statement made by him may be used as evidence against him in a trial by court-martial; however, those protections did not include a right to counsel).
United States v. Hasan, 84 M.J. 181 (the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense; that right includes the right to waive counsel and to represent oneself).
(while the Constitution does not force a lawyer upon a defendant, it does require that any waiver of the right to counsel be knowing, voluntary, and intelligent; the voluntariness of a waiver is measured by reference to the surrounding circumstances; and a simple disagreement with counsel about a certain line of defense is not enough to establish involuntary waiver of counsel).
2019 (October Term)
United States v. Watkins, 80 M.J. 253 (the Sixth Amendment guarantees the right to counsel, and within that, the right to choice of counsel for those who hire their own counsel; it commands, not that a trial be fair, but that a particular guarantee of fairness be provided, to wit, that the accused be defended by the counsel he believes to be best).
(despite adequate representation by counsel, if it is not the accused’s counsel of choice and if he is erroneously prevented from being represented by the lawyer he wants, then the Sixth Amendment right has been violated).
(the violation of the right to choice of counsel is not subject to harmless error analysis; erroneous deprivation of the right to counsel of choice, withconsequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error; harmless error analysis under such circumstances would be a speculative inquiry into what might have occurred in an alternate universe; to compare two attorneys, one whose services were denied, would require a court to speculate upon what different choices or different intangibles might have been between the two).
2017 (October Term)
United States v. Condon, 77 M.J. 244 (the fact that the accused during official questioning and in exercise of rights under the Fifth Amendment to the United States Constitution or Article 31 requested counsel is not admissible against the accused).
2016 (October Term)
United States v. Mitchell, 76 M.J. 413 (because the circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege).
(once a suspect in custody has expressed his desire to deal with the police only through counsel, he is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication).
(in every case involving Edwards (451 US 477 (1981)), the courts must determine whether the suspect was in custody when he requested counsel and when he later made the statements he seeks to suppress).
(Edwards (451 US 477 (1981)) clearly applies to the military).
2015 (September Term)
United States v. Bess, 75 M.J. 70 (the Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor).
2014 (September Term)
United States v. Akbar, 74 M.J. 364 (an accused has the right to conflict-free legal representation; however, he may waive this right so long as it is knowing and voluntary).
(as an Article I court, the CAAF notes that, absent constitutional implications in a particular case or congressional authorization, it is beyond its authority to impose the learned counsel qualification for military capital cases).
(the CAAF does not adopt the ABA Guidelines in analyzing capital defense counsels’ performance; instead it adheres to the Supreme Court’s guidance that no particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant; it examines whether counsel made objectively reasonable choices based on all the circumstances of a case).
2012 (September Term)
United States v. Mott, 72 M.J. 319 (a waiver of an accused’s Fifth Amendment and Article 31, UCMJ, rights to counsel must be knowing and intelligent, and not merely voluntary).
(an accused’s statement during a custodial interrogation is inadmissible at trial unless the prosecution can establish that the accused in fact knowingly and voluntarily waived Miranda rights).
(in the military system the accused’s right to counsel, and the requirement of knowing and voluntary waiver, are not limited to custodial interrogation; military officials and civilians acting on their behalf are required to provide rights warnings prior to interrogating a member of the armed forces if that servicemember is a suspect, irrespective of custody).
(voluntariness of consent and knowing waiver of an accused’s right to counsel are two distinct and discrete inquiries; in addition to showing that the waiver was voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception, the government must also demonstrate that the accused understood his right to counsel and intelligently and knowingly relinquished it).
(the accused has to have full awareness of both the nature of the right to counsel being abandoned and the consequences of the decision to abandon it; however, the Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege; in other words, the accused must fully understand the nature of the right and how it would likely apply in generalin the circumstances, even though the defendant may not know the specific detailed consequences of invoking it; the analysis should take into account the accused’s age, experience, education, background, and intelligence, and his capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights; and the government must show waiver by a preponderance of the evidence).
(there are two branches to the waiver of the right to counsel analysis; first, was the waiver voluntary; and, second, was the waiver knowing and intelligent).
(whether an accused’s waiver of his right to counsel was knowing and intelligent is a conclusion of law rather than a conclusory finding of fact).
2010 (September Term)
United
States v. Gooch, 69 M.J. 353 (the Sixth
Amendment guarantees a criminal
accused, including military service members, the right to effective
assistance
of counsel).
United
States v. Hutchins, 69 M.J. 282 (any procedural
deficiencies concerning the
termination and replacement of the first detailed military defense
counsel did
not result in prejudice to the accused under applicable constitutional
and
statutory standards of law; the accused had the assistance of multiple
counsel
throughout the pertinent proceedings; after the assistant detailed
defense
counsel left the defense team, the accused had the assistance of a
replacement
assistant defense counsel detailed prior to trial; also, the military
judge, at
the request of the defense, granted a continuance to facilitate
preparation by
the new member of the defense team; the defense did not thereafter
request
additional time or resources to permit the reconstituted defense team
to
prepare for or conduct proceedings at trial; similarly, the personnel
action
leading to the severance in the present case resulted from a request
initiated
by the assistant defense counsel, not by the prosecution or the
command; in
that context, the case did not involve a violation of the accused’s
Sixth
Amendment right to counsel; also, the case did not involve structural
error;
the errors in this case involved oversights and omissions in addressing
the
issue of severance on the part of defense counsel, senior officials in
the
defense counsel structure, and the military judge; the case did not
involve any
decision by the military judge to deny pertinent relief requested by
the
defense, such as a request for additional time or resources for trial
preparation, nor does the case involve a decision by the military judge
to
overrule a related defense objection; likewise, the case involves a
personnel
action initiated by a member of the defense team, and does not involve
governmental action undertaken for the purpose of altering the
composition of
the defense team).
United
States v. Wiechmann, 67 M.J. 456 (when a Sixth
Amendment claim
involves a governmental act or omission affecting the right of an
accused to
the assistance of counsel, an appellate court considers whether the
infringement involves a structural error -- an error so serious that no
proof
of prejudice is required -- or whether the error must be tested for
prejudice;
structural error exists when a court is faced with the difficulty of
assessing
the effect of the error or the error is so fundamental that
harmlessness is
irrelevant; structural errors involve errors in the trial mechanism so
serious
that a criminal trial cannot reliably serve its function as a vehicle
for
determination of guilt or innocence; there is a strong presumption that
an
error is not structural).
Denedo
v. United States, 66 M.J. 114 (a military
accused is entitled under the
Constitution and Article 27(b), UCMJ, to the effective assistance of
counsel).
United
States v. Lee, 66 M.J. 387 (in all criminal
prosecutions, the accused
shall enjoy the right to have the assistance of counsel for his
defense; one
element within this Sixth Amendment right to counsel is the right of a
defendant who does not require appointed counsel to choose who will
represent
him; further, counsel provided to or retained by the accused must
provide
reasonably effective assistance; third, where a constitutional right to
counsel
exists, there is a correlative right to representation that is free
from
conflicts of interest; finally, it follows that where assistance of
counsel has
been denied entirely, the likelihood that the verdict is unreliable is
so high
that a case-by-case inquiry is unnecessary).
(an accused may waive his
right to
conflict-free counsel; however, waivers must be voluntary, and they
must be
knowing intelligent acts done with sufficient awareness of the relevant
circumstances and likely consequences; courts will indulge every
reasonable
presumption against the waiver of this right).
United
States v. Brooks, 66 M.J. 221 (in all criminal
prosecutions, the accused
shall enjoy the right to have the assistance of counsel for his
defense; the
Supreme Court has extended the right to counsel to first appeals
guaranteed as
a matter of right; in military jurisprudence, an accused has the right
to
effective representation by counsel through the entire period of review
following trial, including representation before the CCA and the CAAF
by
appellate counsel appointed under Article 70, UCMJ).
(necessarily included in the
Sixth Amendment
right to counsel is the right of an accused to confer privately with
his
attorney).
(not all
impingements on attorney-client
communication constitute per se violations of the Sixth Amendment right
to
counsel thereby requiring reversal; per se violations are limited to
structural
errors and require no proof of prejudice for reversal).
United
States v. Rhoades, 65 M.J. 393 (under the Sixth
Amendment, the accused in a
criminal proceeding has the right to the assistance of counsel for his
defense;
under the UCMJ, an accused has the right to representation by military
counsel
provided at no expense to the accused, and the accused may be
represented by
civilian counsel; the right to counsel of choice under the Sixth
Amendment, as
well as under the UCMJ, is not absolute; the need for fair, efficient,
and
orderly administration of justice may outweigh the interest of the
accused in
being represented by counsel of choice; for example, disqualification
of an
accused’s chosen counsel due to a previous or ongoing relationship with
an
opposing party, even when the opposing party is the government, does
not
violate the Sixth Amendment).
2007
2006
2005
United
States v. Davis, 60 MJ 469 (the Sixth Amendment
guarantees
that a servicemember tried by court-martial will receive competent,
effective
legal representation; the Sixth Amendment right to effective assistance
of
counsel at trials by court-martial is a fundamental right of
servicemembers).
2004
United
States v. Wiest, 59 MJ 276 (the right to counsel is
fundamental to our system of justice).
United
States v. Cain, 59 MJ 285 (members of the armed forces
facing
criminal charges, like their civilian counterparts, have a
constitutional right
to effective assistance of counsel).
United
States v. Seay, 60 MJ 73 (the Fifth Amendment right to
counsel
applies to pretrial interrogation; the Sixth Amendment provides
criminal
accused the right to counsel during criminal proceedings).
(when
an accused
has invoked his right to have counsel present during custodial
interrogation, 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; an accused, having expressed his desire to
deal
with the police only through counsel, is not subject to further
interrogation
by the authorities until counsel has been made available to him, unless
the
accused himself initiates further communication, exchanges, or
conversations
with the police).
(one
cannot
anticipatorily invoke the right to counsel prior to custodial
interrogation).
(custodial
interrogation may be reinitiated without counsel being present where a
suspect
is provided a meaningful opportunity to consult with counsel, and
subsequently
waives his right to counsel).
2003
United
States v. Dorman, 58 MJ 295 (individuals accused
of crime
shall have the assistance of counsel for their defense through
completion of
their appeal; this right includes the right to the effective assistance
of
counsel on appeal).
1999
United
States v. McClain, 50 MJ 483 (Sixth Amendment guarantee
of the
right to effective assistance of counsel means the right to counsel who
is
conflict free; to demonstrate a violation of this right an appellant
must
establish (1) an actual conflict of interests that (2) adversely
affects the
lawyer’s performance).