Court-Martial Trial Practice Blog
The court has decided Maryland v. Shatzer (background documents on SCOTUSWiki here ) and also Florida v. Powell (background documents on SCOTUSWiki here). Both cases relate to “Miranda” rights and confessions. In Powell, the issue was how much detail must go into a “Miranda” warning in order to be sufficient, in Shatzer the court addresses the break in custody situation.
In Powell the issue was whether the rights advice given properly conveyed to the suspect that he had the right to counsel present during questioning and not just before being questioned. After an interesting discussion showing how ambiguous the language used was, the court found the appellant was adequately advised. Interestingly, the court noted that:
The standard warnings used by the Federal Bureau of Investigation are exemplary. They provide, in relevant part: “You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning.” Ibid., n. 3 (internal quotation marks omitted). This advice is admirably informative, but we decline to declare its precise formulation necessary to meet Miranda’s requirements. Different words were used in the advice Powell received, but they communicated the same essential message.
Slip op. at 13.
As an example, DA Form 3881, states:
(For personnel subject to the UCMJ) I have the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with me during questioning. This lawyer can be a civilian lawyer I arrange for at no expense to the Government or a military lawyer detailed for me at no expense to me, or both.
(For civilians not subject to the UCMJ) I have the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with me during questioning. I understand that this lawyer can be one that I arrange for at my own expense, or if I cannot afford a lawyer and want one, a lawyer will be appointed for me before any questioning begins.
The Navy IG uses this format:
I have the right to consult with lawyer/counsel prior to any questioning. This lawyer/ counsel may be a civilian lawyer retained by me at my own expense, a military lawyer appointed to act as my counsel without cost to me, or both;
I have the right to have such retained civilian lawyer and/or appointed military lawyer present during this interview.
CAAF had decided the Shatzer break in custody situation for military cases, primarily in United States v. Vaughters, 44 MJ 377 (C.A.A.F. 1996).
The granted issue in this case challenges the holding of the Court of Criminal Appeals that Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981), did not apply in appellant’s case. See generally Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994). In Edwards, the Supreme Court held that once an individual in custody asserts his right to counsel under the Fifth Amendment all interrogation must cease until counsel is "made available" or the accused "initiates further communication…with the police." Id. at 484-85. The service court below held that custodial interrogation may be reinitiated without counsel being present where a suspect had been released from custody for 19 days, provided a meaningful opportunity to consult with counsel, and subsequently waived his right to counsel. We agree with the Court of Criminal Appeals that this holding does not violate Edwards. See United States v. Schake, supra.
In Schake, this Court addressed the question whether Edwards v. Arizona, supra, was applicable in the break-in-custody (6 days) context. A majority of this Court held [that a six day break in custody was a sufficient break so that Edwards did not bar the confession.]
United States v. Vaughters, 44 M.J. 377, 378 (C.A.A.F. 1996).
In Shatzer the Court holds that a “break in custody” allows the police to restart questioning a suspect who invoked. This is an exception to Edwards v. Arizona, 451 U.S 477 (1981). Erin Miller of SCOTUSBlog notes that seven justices would hold that if there is a break of at least 14 days, Edwards does not even apply. Vaughters had a 19 day break in custody.