U.S. v. Hutchins, 72 M.J. 294

First Principles: Constitutional Matters: Confessions

1. a request for consent to search does not infringe upon Article 31 or Fifth Amendment safeguards against self-incrimination because such requests are not interrogations and the consent given is ordinarily not a statement; as such, an NCIS request to a servicemember for his consent to search his personal belongings after the servicemember had invoked his right to an attorney was not an interrogation for Article 31 and Fifth Amendment purposes
2. once a servicemember requests an attorney, under Edwards v. Arizona, 451 US 477 (1981), and Oregon v. Bradshaw, 462 US 1039 (1983), he cannot be further interrogated unless: (1) counsel had been made available, or (2) the servicemember reinitiated further communication, exchanges, or conversations
3. after appellant invoked his right to an attorney, a request by NCIS to appellant for his consent to search his personal belongings reinitiated communication with him in violation of his Fifth Amendment right to have counsel present during a custodial interrogation as interpreted by the Supreme Court in Edwards v. Arizona, 451 US 477 (1981), where this request for consent to search by the NCIS initiated a generalized discussion that related directly to the ongoing investigation as contrasted to a bare inquiry about routine incidents of appellant’s custody

First Principles: Constitutional Matters: Search and Seizure

1. a request for consent to search does not infringe upon Article 31 or Fifth Amendment safeguards against self-incrimination because such requests are not interrogations and the consent given is ordinarily not a statement; as such, an NCIS request to a servicemember for his consent to search his personal belongings after the servicemember had invoked his right to an attorney was not an interrogation for Article 31 and Fifth Amendment purposes

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Generally

1. once a servicemember requests an attorney, under Edwards v. Arizona, 451 US 477 (1981), and Oregon v. Bradshaw, 462 US 1039 (1983), he cannot be further interrogated unless: (1) counsel had been made available, or (2) the servicemember reinitiated further communication, exchanges, or conversations
2. after appellant invoked his right to an attorney, a request by NCIS to appellant for his consent to search his personal belongings reinitiated communication with him in violation of his Fifth Amendment right to have counsel present during a custodial interrogation as interpreted by the Supreme Court in Edwards v. Arizona, 451 US 477 (1981), where this request for consent to search by the NCIS initiated a generalized discussion that related directly to the ongoing investigation as contrasted to a bare inquiry about routine incidents of appellant’s custody

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Article 31

1. a request for consent to search does not infringe upon Article 31 or Fifth Amendment safeguards against self-incrimination because such requests are not interrogations and the consent given is ordinarily not a statement; as such, an NCIS request to a servicemember for his consent to search his personal belongings after the servicemember had invoked his right to an attorney was not an interrogation for Article 31 and Fifth Amendment purposes
2. fidelity to the doctrine announced in Miranda v. Arizona, 384 US 436 (1966) (establishing procedural safeguards to secure the privilege against self-incrimination during an accused’s custodial interrogation), requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Invocation of Rights

1. once a servicemember requests an attorney, under Edwards v. Arizona, 451 US 477 (1981), and Oregon v. Bradshaw, 462 US 1039 (1983), he cannot be further interrogated unless: (1) counsel had been made available, or (2) the servicemember reinitiated further communication, exchanges, or conversations
2. after appellant invoked his right to an attorney, a request by NCIS to appellant for his consent to search his personal belongings reinitiated communication with him in violation of his Fifth Amendment right to have counsel present during a custodial interrogation as interpreted by the Supreme Court in Edwards v. Arizona, 451 US 477 (1981), where this request for consent to search by the NCIS initiated a generalized discussion that related directly to the ongoing investigation as contrasted to a bare inquiry about routine incidents of appellant’s custody

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Self-incrimination

1. a request for consent to search does not infringe upon Article 31 or Fifth Amendment safeguards against self-incrimination because such requests are not interrogations and the consent given is ordinarily not a statement; as such, an NCIS request to a servicemember for his consent to search his personal belongings after the servicemember had invoked his right to an attorney was not an interrogation for Article 31 and Fifth Amendment purposes

Core Criminal Law Subjects: Evidence: Search and Seizure › Consent

1. a request for consent to search does not infringe upon Article 31 or Fifth Amendment safeguards against self-incrimination because such requests are not interrogations and the consent given is ordinarily not a statement; as such, an NCIS request to a servicemember for his consent to search his personal belongings after the servicemember had invoked his right to an attorney was not an interrogation for Article 31 and Fifth Amendment purposes

Trial Stages: Appeals: Harmless / Prejudicial Error

1. at appellant’s court-martial, the government’s use of appellant’s statement, obtained in violation of his Fifth Amendment right to counsel during a custodial interrogation, was not harmless beyond a reasonable doubt, where the government made use of the detailed statement in its opening statement, closing argument, and rebuttal argument, and as evidence to corroborate other evidence and to attack the opinion of the defense expert witness; notwithstanding the other evidence of appellant’s guilt, there was a reasonable likelihood that the statement contributed to the verdict

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. for an error in admitting a statement obtained in violation of the Fifth Amendment right to have counsel present during a custodial interrogation to be harmless beyond a reasonable doubt, an appellate court must be convinced that there was no reasonable likelihood that its erroneous admission contributed to the verdict