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Fundamental: The Right to Counsel (Part 5 of 5)

Defending Those Who Defend Us ®

Guaranteed by the Fifth and Sixth Amendments to the United States Constitution, the right to counsel is arguably the most important guarantee in the Bill of Rights because it is through counsel that all other rights are protected. It is the attorney who preserves the rights of their clients, gives confidential advice, and who zealously defends their cause at trial. The greatest protection to someone suspected of misconduct is a great attorney.  

The skilled and experienced attorneys at MJA have defended service members facing investigation, court-martial, and discipline for the most serious offenses under the Uniform Code of Military Justice (UCMJ). If you or a loved one are facing court-martial or other adverse action, contact one of our military defense lawyers today for a free consultation.

Fifth Amendment Right to Counsel

The Fifth Amendment to the United States Constitution guarantees that no suspect shall be compelled in any criminal case to be a witness against himself. The United States Supreme Court has interpreted the Fifth Amendment privilege against self-incrimination to encompass two distinct rights: the right to remain silent and the right to an attorney during pretrial questioning.

Given the inherently compelling nature of a police interrogation, the law requires law enforcement officers to inform a suspect of his right to consult with an attorney and to have an attorney with him during questioning before beginning questioning.

To invoke the right to counsel, a suspect must state his desire to have an attorney present “sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Davis v. United States, 512 U.S. 452, 459 (1994). Police must terminate the interview if the suspect’s request clearly communicates his desire for counsel. However, “if the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.” Id. at 461-62.

Once a suspect has invoked his right to have counsel present during custodial interrogation, a suspect does not waive that right simply by responding to further police-initiated questioning. Rather, once a suspect has expressed his desire to deal with the police only through counsel, he cannot be further questioned by police until an attorney has been made available to him unless the suspect himself initiates further communication, exchanges, or conversations with the police.

Sixth Amendment Right to Counsel

The Sixth Amendment to the United States Constitution guarantees that “in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” While the Fifth Amendment creates a right to counsel during pretrial questioning, the Sixth Amendment guarantees an accused the right to the effective assistance of counsel during criminal proceedings.

The Sixth Amendment not only guarantees the effective assistance of counsel at trial but also guarantees an accused the right to choose who to hire as their attorney. This is where civilian defense attorneys come in. In the military, a service member accused of misconduct has the absolute right to be defended by detailed military counsel, military counsel of choice if such counsel is reasonably available and, at his own expense, civilian counsel of his choice.

MJA often gets calls from service members who are not satisfied with their military defense and want to hire civilian counsel to represent them at their administrative separation board or court-martial. Even if military counsel provides “adequate” representation, if it is not the accused’s choice of counsel and if he is unfairly prevented from being represented by the attorney of his choice, then his Sixth Amendment right has been violated.

Notably, the Sixth Amendment right to counsel is offense-specific and only attaches once charges have been brought. In the military, the Sixth Amendment right to counsel does not attach until preferral of charges.  

Evidence Obtained in Violation of Right to Counsel Inadmissible

The Military Rules of Evidence render inadmissible any statements obtained in violation of an accused’s Fifth and Sixth Amendment rights to counsel.

M.R.E. 305(c)(2), which applies to the Fifth Amendment right to counsel, provides that “If a person suspected of an offense and subjected to custodial interrogation requests counsel, any statement made in the interrogation after such request, or evidence derived from the interrogation after such request, or evidence derived from the interrogation after such request, is inadmissible against the accused unless counsel was present for the interrogation.”

M.R.E. 305(c)(3) applies to the Sixth Amendment right to counsel and states: “If an accused against whom charges have been preferred is interrogated on matters concerning the preferred charges by anyone acting in a law enforcement capacity, or the agent of such a person, and the accused requests counsel, or if the accused has appointed or retained counsel, any statement made in the interrogation, or evidence derived from the interrogation, is inadmissible unless counsel was present for the interrogation.”

In order for the statements to be ruled inadmissible, the accused’s attorney must be able to identify the right to counsel violations and must typically file a motion to exclude.  

Requesting an Attorney Cannot be Held Against You

Service members under investigation often make statements to law enforcement because they are concerned about the optics of how it will look if they invoke their right to remain silent or request to speak to an attorney. This is usually the wrong decision.

The Military Rules of Evidence prohibit the government from using an accused’s invocation of their rights against them. In other words, the prosecution cannot comment at trial on the fact that an accused invoked his right to remain silent, refused to answer certain questions from law enforcement, or requested to speak with an attorney.

This right to codified in M.R.E. 301(f)(2) which provides: “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 remained silent, refused to answer a certain question, requested counsel, or requested that the questioning be terminated, is not admissible against the accused.”

To be safe, a service member who is under investigation should always ask to speak with counsel before making any statement to law enforcement. That request for co

Contact MJA Today

If you are under investigation or facing court-martial, it is of the utmost importance that you contact an experienced attorney. The most important rule to remember is to never talk to anyone without an attorney present. Military Justice Attorneys stands ready to fight for you. Call us today at (843) 773-5501 for a free consultation.

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