Court-Martial Trial Practice Blog
In United States v. Deremer, 2025 CCA LEXIS 46, 2025 WL 427756 (N-M.Ct. Crim. App. 20 Feb. 2025), NMCCA decided that when an alleged victim has an SVC, the MCIO must notify the SVC of any interviews, especially those with intent to interrogate the “victim” about a false allegation.
The McOmber rule was based on the CMA’s interpretation of the right to counsel at the time. Following two Supreme Court decisions the Military Rules of Evidence were amended, and in United States v. Finch, McOmber was overruled because its constitutional basis was no longer good law and the Court of Appeals for the Armed Forces [CAAF] established that Mil. R. Evid. 305 governed Section 1044e and 10 U.S.C. § 1565b along with the accompanying DoDI and, in this case, the LSAM are congressional, departmental and service efforts to afford specific (and in some cases different or greater) rights to those in, or related to, the military who report that they are victims sexual assault.
United States v. Deremer, No. 202300205, 2025 CCA LEXIS 46, at *11-12 (N-M Ct. Crim. App. Feb. 7, 2025).
We therefore hold that, in clear conformity with congressional intent: once an individual, subject to the Code, knows, or reasonably should know, that an alleged victim is represented by an attorney pursuant to Section 1044e, questioning of that alleged victim, about related matters, without affording the counsel reasonable opportunity to be present is a due process violation, and renders any statement obtained involuntary under Mil. R. Evid. 304. This includes questioning with regard to the alleged victim’s future desires with respect to counsel as well as the right to remain silent, for a lawyer’s counseling on these two matters in many instances may be the most important advice ever given a client. To permit, through whatever device, an agent of the government to persuade the alleged victim, regardless of how she is titled, to forfeit the assistance of an appointed attorney outside the presence of that counsel would utterly defeat the obvious congressional purpose of assuring military victims of sexual assault effective legal representation.
United States v. Deremer, No. 202300205, 2025 CCA LEXIS 46, at *13-14 (N-M Ct. Crim. App. Feb. 7, 2025).
That used to be the rule for an accused. Whenever the MCIO wanted to interview the accused and knew he had counsel, the MCIO was required to notify the counsel. That was the long-standing decision in United States v. McOmber, 1 M.J. 380, 383, 24 C.M.A. 207, 51 C.M.R. 452 (C.M.A. 1976). However the CAAF overruled McComber in United States v. Finch, 64 M.J. 118 (C.A.A.F. 2006).
The current version of M.R.E. 305(e) does not require an investigator to notify an accused’s or suspect’s counsel prior to initiating an interview, regardless of whether the investigator knows or reasonably should know that the accused or suspect is represented by counsel on the offenses about which the investigator intends to question him. The McOmber notification rule and the subsequent codification of the rule in the Military Rules of Evidence were not constitutionally required under the Fifth or Sixth Amendments of the Constitution and are not consistent with the law set forth in Minnick and McNeil. Thus, there is no constitutional requirement to provide an accused with more rights than those set out in the rules. Accordingly, we hold that the military judge did not err in admitting Appellant’s statement to CPT Montgomery.
United States v. Finch, 64 M.J. 118, 125 (C.A.A.F. 2006).
This discrepancy further highlights how an accused’s “rights” are limited and blatantly unfair.
The answer for an accused is NEVER reinitiate contact with the MCIO agents once you have invoked your rights and tell the defense counsel “they” want to talk to you again.