As Marcus Fulton long ago predicted, United States v. Finch, finished off the McOmber Rule requiring an investigator to notify an acused’s attorney that the accused is about to be interrogated and then to give the attorney a reasonable opportunity to be present at the interrogation. In Finch, CAAF directly addressed the continuing application of McOmber and expressly overruled it in light of Minnick v. Mississippi, 498 U.S. 146 (1990) and McNeil v. Wisconsin, 501 U.S. 171 (1991). What I find most interesting about this is that Judge Crawford relies on the “absence of a distinct military rationale justifying its continued application” to overrule McOmber. I wonder if this sort of Article 36, UCMJ reasoning (following the rule in federal districit courts unless there is a distinct military reason not to) would be applied in favor of the defense, such as in United States v. Walker, a capital case currently pending before CCA.

Congratulations to Marcus Fulton and Brian Mizer for finally killing off McOmber!

Posted by Jason Grover

One Response to “U.S. v. McOmber RIP”

  1. Marcus Fulton says:

    There aren’t too many areas of practice in which citing precedent is more likely to destroy the precedent than help your client. Military criminal defense may be one such area. It’s like fighting a forest fire with a snow cone. I think McOmber should still be the rule, but I suspected that it wouldn’t survive this case when I briefed it.
    CAAF didn’t even grant the best issue in the case, which was speedy trial. Maybe that’s a fortunate thing for the defense bar as a whole; others can ruin that case law at another time.