I don’t often look at the Naval Justice School site, less robust than it used to be. But today I did decide to see if there is a new issue of the Naval Law Review. Sure enough, there’s an article of interest to military justice practitioners. You’ll have to scroll down to page 67, it’s not hyperlinked.
The notorious CDR (judge)(Art. 32 IO) Monahan has this piece.
A PROPOSAL TO CONFORM MILITARY RULE OF EVIDENCE 305 IN LIGHT OF THE SUPREME COURT’S HOLDINGS IN MARYLAND V. SHATZER AND BERGHUIS V. THOMPKINS
The Shatzer Court held that a fourteen-day break in custody will end the Edwards presumption that police-initiated custodial interrogation after a suspect invoked his right to counsel is involuntary. The Shatzer Court also held that when an interrogated suspect who is being held in incarceration due to a prior conviction is released back to the general prison population, this constitutes a break in custody with regard to the termination of the Edwards protection discussed above. Together, the holdings of the Shatzer case should be applied to revise MRE 305(e)(3)(A), which sets forth the military rule for interrogation of an accused or suspect who requests counsel and who is in custody, could reasonably believe himself or herself to be in custody, or is otherwise deprived of his or her freedom in any way.
(Note: this is the military Vaughters Rule. United States v. Vaughters, 44 M.J. 377, 378 (C.A.A.F. 1996) (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). Note further that in Vaughters CMA said a 19 day lapse was fine.)
In Berghuis v. Thompkins, the Supreme Court held that a suspect who has properly received and understood the Miranda warnings waives the right to remain silent by making an uncoerced statement to the police without invoking the Miranda rights. Moreover, the Thompkins Court held that the police are not required to obtain a waiver from a suspect of his or her right to remain silent before commencing interrogation. Applying the holdings of the Thompkins case, MRE 305(c)(4), that states the military rule concerning the exercise of the privilege against self-incrimination and the right to counsel, as well as MRE 305(e), that provides the military rule regarding an accused’s or suspect’s waiver of the rights provided under MRE 301 and MRE 305, should be revised.