1 

Interviewing Represented Military Suspects: 

U.S. v. Finch (CAAF 2006) and the Sixth Amendment 

Right to Counsel 

Captain Anthony W. Bell1

Captain Jon B. Stanley2 

Introduction 

On 29 September 2006, the Court of Appeals for the Armed Forces (CAAF) published its 

decision in United States v. Finch3

, effectively overturning its prior decision in United States v. 

McOmber.4 The overturning of McOmber had been widely predicted since MRE 305(e)(2) was 

changed in 1994 to more accurately reflect the present state of the law as governed by Supreme 

Court decisions on the Sixth Amendment right to counsel.5

 Both Finch and McOmber address 

the United States’ duty to honor the attorney client relationship during a criminal investigation. 

In McOmber, the Court of Military Appeals6 ruled that as soon as an investigator is on notice that 

a military suspect is represented by counsel in a military criminal investigation, further 

questioning of the suspect, without affording counsel notice and a reasonable opportunity to be 

present, renders a statement involuntary and inadmissible. However, suspects who themselves 

initiated the contact could be questioned without notice to and the presence of counsel. The 

Finch decision dramatically changed the legal landscape and brought military practice in line 

with federal, civilian criminal practice. What practical effect will the Finch decision have on 

criminal investigations in the military? What are the potential pitfalls for military prosecutors 

when advising government agents to contact7 a military member who is represented by counsel? 

The Sixth Amendment Right to Counsel and MRE 305(e)

The Sixth Amendment right to effective assistance of counsel is triggered by the initiation of 

“adversarial judicial proceedings,” and is guaranteed at any critical stage of a prosecution.8

 In 

the federal, civilian criminal justice system, the Sixth Amendment right to counsel is triggered by 

way of a formal charge (indictment or information) or the initial appearance, whichever occurs 

first.9 Once formal proceedings begin, police may not deliberately elicit statements from a 

defendant without notice to and approval of counsel or defendant’s express waiver of the right to 

counsel. This is true even in a non-custodial setting and even when the person being questioned 

does not know the questioner is the police.10 In the military, criminal justice system, an 

accused’s Sixth Amendment right to counsel is triggered when charges are preferred.11 After 

charges are preferred the accused may not be questioned about the charged offense(s) unless 

counsel is present or unless the accused initiates the contact.12 In accordance with McOmber, 

statements taken, even before prefferal of charges, by investigators with knowledge that the 

suspect is represented by counsel are involuntary and inadmissible. CAAF, in overturning 

McOmber, has effectively removed an extra, procedural protection for military members subject 

to the military justice process. The following examples illustrate just how far the Finch decision 

has withdrawn the protection of counsel to service members. 
2 

EXAMPLE 1: On 13 Oct 06, the Air Force Office of Special Investigations (AFOSI) receives a 

letter from the Area Defense Counsel (ADC) stating that the ADC represents SSgt Snuffy, and 

not to talk to SSgt Snuffy without consulting the ADC. SSgt Snuffy is not currently under 

investigation. Two hours later, OSI receives an allegation that SSgt Snuffy is a suspect in an 

aggravated assault. Since charges have not been preferred, OSI may contact SSgt Snuffy directly 

to talk to him about the allegation even though OSI knows that SSgt Snuffy is represented by the 

ADC. It is up to SSgt Snuffy to request an attorney or assert his right to remain silent (under 

Art. 31(b) and/or Miranda/Tempia). 

EXAMPLE 2: On 1 Nov 06, charges are preferred against A1C Doe for use of cocaine. Agents 

cannot contact A1C Doe about the charged use of cocaine without first calling her ADC. 

However, agents could directly contact A1C Doe to talk to her about an unrelated charge of 

assault. Agents must comply with Art. 31(b), as usual, but it is up to A1C Doe to decide whether 

or not she wants to speak to OSI about the assault charge or talk to her lawyer. 

EXAMPLE 3: On 3 Dec 06, 1st Lt Berry is placed in pretrial confinement. When advised under 

Art. 31(b) and Miranda/Tempia, he asks for a lawyer. While he is in pretrial confinement, OSI 

receives an allegation that 1st Lt Berry has also committed larceny. Government agents are 

barred from going to confinement and interviewing 1st Lt Berry about either the larceny or rape 

charge without his attorney being present. On 10 Dec 06 1st Lt Berry is released from pretrial 

confinement. Charges have not been preferred. OSI may interview him (under rights 

advisement) for the larceny, the rape, or any other offense, without first going through 1st Lt 

Berry’s lawyer. 

The examples illustrate how dramatically the Finch decision has changed the way government 

investigators can conduct criminal investigations. Prior to the decision in Finch, investigators 

would generally only get one bite at the apple when interviewing a suspect because it was 

common for the suspect to seek assistance from the Area Defense Counsel shortly after an 

interview had occurred. The Area Defense Counsel in turn would place the government on 

notice that the suspect was represented by counsel using the commonly issued notice of 

representation letter. Now, after Finch, investigators are not bound by the notice of 

representation and may re-interview a suspect who is represented by counsel, provided charges 

have not been preferred. 

Contacting Represented Parties and the 

Air Force Rules of Professional Conduct Rule 4.213

Even though Finch has changed the rules of engagement for contact by investigators, judge 

advocates who advise government agents still need to be sensitive to the pre-preferral attorneyclient relationship and when approaching the apple on the second bite. Criminal investigators 

must understand that there are ethical constraints on military attorneys that can impact the advice 

they give regarding interviewing represented suspects. The Air Force Rules of Professional 

Conduct contain a “no contact” provision. Specifically, Rule 4.2 prevents a lawyer from 

communicating with a person who the lawyer knows to be represented by another lawyer in the 

same matter.14 The purpose of Rule 4.2 is to protect the integrity of the attorney-client 

relationship. Federal circuits have made clear that when a government agent acts as the alter-ego 
3 

of the lawyer, the “no contact” rule can reach the conduct of the agent and therefore the lawyer.15

In other words, a lawyer cannot get someone else to do what the lawyer cannot ethically do. For 

example, the judge advocate, who advises the local OSI detachment to conduct a re-interview of 

a represented accused, may have crossed the ethical line between “mere knowledge” and “active 

encouragement”.16 The ethical inquiry is highly fact specific and will hinge on the level of 

involvement between the judge advocates and the investigators. The greater the involvement the 

more likely the investigator becomes an agent of the judge advocate. Thus, judge advocates 

often counsel cautiously when an accused is represented by counsel. 

Lawyers can be disbarred for ethical violations. Federal courts, at least in criminal cases, have 

been reluctant to suppress statements or exclude evidence because of an ethical violation, 

provided all other evidentiary and Constitutional requirements have been satisfied.17 That said, 

however, there is no guarantee that future courts will be so kind. A false step that is particularly 

egregious may warrant suppression, undoing a successful prosecution of a case. Where reinterviews with a member represented by counsel are of concern, judge advocates may restrict 

their input to avoid any ethical entanglement on the second bite. 

Conclusion

With one fell stroke of the pen (or keyboard), CAAF overturned McOmber and changed almost 

thirty years of standard military justice practice. By negating the protections of the notice of 

representation letter for an accused in the early stages of a criminal investigation, CAAF has 

opened new opportunities for suspect interviews and more closely aligned military practice with 

long standing civilian practice. 

 

1

 Captain Anthony W. Bell is the Staff Judge Advocate and Instructor at USAFSIA (OSI Academy) and detailed to 

the Legal Division at the Federal Law Enforcement Training Center, Glynco, GA. Previously, Capt Bell was the 

Area Defense Counsel at Eglin AFB. 

2

 Captain Jon B. Stanley is the Chief of Military Justice at Charleston AFB. Previously, Capt Stanley was the Area 

Defense Counsel at Tyndall AFB. 

3 United States v. Finch, 64 M.J. 118 (2006). 4 United States v. McOmber, 1 M.J. 380 (1976). 5 MANUAL FOR COURTS-MARTIAL, App. 22, M.R.E 305(e). 6

 In 1994, Congress renamed the Court of Military Appeals the Court of Appeals for the Armed Forces. 7

 The words contact and re-interview are used interchangeably throughout this article. Understand that in both 

instances an interrogation would occur so that investigators would be required to advise the military member of their 

Article 31(b) and potentially Miranda/Tempia rights. The word interrogation is deliberately not used to avoid a 

discussion about Art. 31(b) and the 5th Amendment, as that analysis is outside the scope of this article. 8 Kirby v. Illinois, 406 U.S. 682, 689 (1972); Maine v. Moulton, 474 U.S. 159, 171 (1985). 9 Fellers v. U.S., 124 S. Ct. 1019 (2004). 10 Michigan v. Jackson, 475 U.S. 625 (1986). 11 MANUAL FOR COURT-MARTIAL, MIL. R. EVID. 305(d)(1)(b). 12 United States v. Harvey, 37 M.J. 140 (C.M.A. 1993); United States v. Wattenbarger, 21 M.J. 41 (C.M.A. 1985). 

13 In the federal criminal justice system the prohibition against using agents to contact represented parties can be 

found at 28 USC 530B (McDade Act). The Attorney Generals guidelines regarding contacting represented parties, 

state ethics rules and local district rules. 14 AIR FORCE RULES OF PROFESSIONAL CONDUCT Rule 4.2 (2005). 15 United States v. Jamil, 707 F.2d 638, 645 (2d Cir. 1983). 
4 

 16 Miano v. AC&R Adver., 148 F.R.D. 68, 83 (S.D. N.Y. 1993). See also, Holdren v. GMC, 13 F. Supp. 2d 1192, 

1195 (D.Kan. 1998). 

17 United States v. Guerrerio, 675 F. Supp. 1430, 1433 (S.D.N.Y. 1987).