CORE CRIMINAL LAW SUBJECTS: Evidence: Confessions and Admissions

Generally:

 

2012 (September Term)

United States v. Hutchins, 72 M.J. 294 (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). 

(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).   

2008 (Septermber Term)


United States v. Chatfield, 67 M.J. 432 (the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the accused unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination; the safeguards must take the form of specific warnings – prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed).

 

(while Miranda warnings provide procedural safeguards to secure the right against self-incrimination during custodial interrogations, the Due Process Clauses of the Fifth and Fourteenth Amendments protect an accused generally against the admission of any involuntary statements, whether made in or out of custody).

 

(where the events leading up to and taking place during the civilian police interview of appellant created neither a custodial situation in which Miranda warnings were required nor a coercive setting in which appellant’s will was overborne, appellant’s statements to the officer were given voluntarily, and, as such, the military judge did not abuse his discretion by admitting them).


2005


United States v. Bresnahan, 62 M.J. 137 (Article 31(d), UCMJ, prohibits the admission of statements obtained from an accused through the use of coercion, unlawful influence, or unlawful inducement).


United States v. Clark, 62 M.J. 195 (generally, in the absence of a privilege, any relevant statement by an accused could be admitted into evidence by the government as a statement of a party opponent).


2001

United States v. Whitney, 55 MJ 413 (polygrapher’s testimony that appellant did not respond to a post-polygraph challenge to his truthfulness was admitted in violation of Mil.R.Evid. 301(f)(3) and was error of constitutional proportion).

(improper comment about appellant’s post-polygraph silence in the face of a challenge to his truthfulness was harmless beyond a reasonable doubt because, inter alia:  (1) the military judge admonished the members to disregard this testimony; (2) the president of the court acknowledged that he understood instruction to disregard testimony about appellant’s silence; (3) in the absence of evidence to the contrary, court members are presumed to understand and follow the military judge’s instructions; and (4) the victim provided credible, persuasive testimony).

2000

United States v. Cobia, 53 MJ 305 (the transcript of appellant’s guilty plea to the same acts as charged at court-marital was admissible as an admission under MRE 801(d)(2)).

United States v. Ruiz, 54 MJ 138 (statement by AAFES security personnel, “[t]here seems to be some AAFES merchandise that hasn’t been paid for”, was not an interrogation requiring Article 31(b) warnings because the statement was no more than advising the appellant why he was stopped and why security personnel asked appellant to accompany them back to the office; these were words normally attendant to the detention process and not an interrogation).

(interrogation does not include words or actions normally attendant to arrest and custody; merely informing a person of what he was suspected would not mandate an Article 31 rights’ advisement).

1999

United States v. Scott, 51 MJ 326 (the Fifth Amendment right against self-incrimination applies during sentencing in a criminal case).

(the Fifth Amendment right against self-incrimination and Article 31, UCMJ, apply during pretrial and trial stages, including sentencing, in a criminal case).

United States v. Griffin, 50 MJ 278 (in the face of an appropriate motion or objection, the prosecution bears the burden of establishing the admissibility of a confession, and the military judge must find by a preponderance of the evidence that the statement was voluntarily made, considering the totality of the circumstances, including both the characteristics of the accused and the details of the interrogation).

United States v. Ford, 51 MJ 445 (the prosecution has the burden of establishing the admissibility of a confession, establishing by a preponderance of the evidence that the confession was voluntary)


Admission by silence:


2010 (September Term)


United States v. Clark, 69 M.J. 438 (servicemembers have a constitutional, statutory, and regulatory right to silence).

 

(it is settled that the government may not use a defendant’s exercise of his Fifth Amendment rights as substantive evidence against him). 

 

(MRE 304(h)(3) safeguards an accused’s right to remain silent, providing that a person’s failure to deny an accusation of wrongdoing concerning an offense for which at the time of the alleged failure the person was under official investigation or was in confinement, arrest, or custody does not support an inference of an admission of the truth of the accusation; based on the language of MRE 304(h)(3) and the weight of authority in the federal circuits, it is constitutional error to introduce evidence of appellant’s post-apprehension silence as substantive evidence of guilt, and to then comment on that evidence in closing argument; a lack of response or reaction to an accusation is not demeanor evidence, but a failure to speak). 

 

(testimonial demeanor, like other testimonial evidence in response to police questioning, implicates an accused’s right to silence and against self-incrimination, thus triggering the application of the Fifth Amendment and its statutory and regulatory safeguards; even where demeanor is nontestimonial, improper commentary on the accused’s silence in response to police questioning when presenting evidence of an accused’s demeanor may nevertheless implicate the same rights and protections as testimonial evidence; thus, where the evidence concerns testimonial demeanor or includes improper commentary on the accused’s silence, that demeanor evidence is generally inadmissible under the Fifth Amendment and its statutory and regulatory safeguards, unless the accused waives those rights or otherwise invites the evidence). 

 

(when assessing the admissibility of the evidence of an accused’s demeanor, a military judge must identify the demeanor at issue and ask whether the demeanor is itself testimonial or not testimonial in nature, or whether evidence of the demeanor at issue includes improper commentary on the accused’s silence; if evidence of an accused’s demeanor is testimonial or includes an improper comment on silence, the judge analyzes the evidence under the Fifth Amendment or applicable statutory and regulatory safeguards; where the evidence is neither testimonial nor an improper comment on silence, the judge then considers whether the accused’s demeanor is relevant under MRE 404(b) or other evidentiary rules relating to relevance). 

 

(trial counsel’s comments in his opening statement, direct examination of the investigating agent, and closing argument constituted plain error because they clearly commented on appellant’s silence in response to appellant’s post-apprehension, pre-advisement accusation of criminal conduct, in violation of MRE 304(h)(3) and the Fifth Amendment right to silence; first, trial counsel’s opening statement reference to appellant’s reaction - “shoulders slumped and his head dropped; chin to chest” - as his response to being confronted with being suspected of communicating sexual language with a minor conveyed that appellant failed to deny the accusation, rather than merely describe appellant’s body movements as one of a series of events to describe what was happening; second, during the direct examination of the investigating agent, trial counsel not only elicited explicit comments on appellant’s response of silence but explicitly commented on appellant’s silence himself in the examination questions; finally, trial counsel relied on these comments in his closing argument to explicitly argue that appellant’s silence evidenced his guilt). 

 

(the Fifth Amendment cannot with one hand protect an accused from being compelled to testify and yet with the other hand permit trial counsel to argue that an accused’s silent demeanor in response to an accusation of wrongdoing is tantamount to a confession of guilt).

 

(trial counsel may use the fact of post-arrest silence to contradict an accused who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest, thus acting not as substantive evidence of guilt but rather as a challenge to the accused’s testimony as to his behavior following arrest; however, trial counsel is prohibited from treating the accused’s silence as substantive evidence of guilt). 

 

(trial counsel’s comments on rebuttal closing argument that the first thing that appellant said when he was confronted by law enforcement officers was said through his defeated body language and silence were comments that were not invited as a fair response to appellate defense counsel’s general closing argument that “right from the start,” appellant had stated that he thought he was communicating over the internet with a cop and not a 13-year-old girl; appellant did not testify to making an exculpatory statement to the police after his arrest, and his defense counsel did not argue that the “first” thing appellant said was, “I thought it was a cop”; taken in context, trial counsel’s comments went beyond what was permissible as fair response and used appellant’s demeanor and silence as evidence of guilt; as such, this was constitutional error). 


United States v. Pope, 69 M.J. 328 (it is constitutional error to admit evidence of - or comment on in argument - an accused’s post-apprehension silence as evidence of guilt). 

 

(although testimonial comments at trial indicated that when appellant was informed of her positive drug test, she was lackadaisical, acted like she did not care, and did not appear surprised, these comments could be viewed as either nontestimonial demeanor evidence or as implicating appellant’s right to remain silent; it is a closer question whether the comments violated MRE 304(h)(3)(stating that a person’s failure to deny an accusation of wrongdoing concerning an offense for which at the time of the alleged failure the person was under official investigation or was in confinement, arrest, or custody does not support an inference of an admission of the truth of the accusation). 


2008 (September Term)


United States v. Paige, 67 M.J. 442 (a military accused has the right not to testify, and trial counsel may not comment directly, indirectly, or by innuendo, on the fact that an accused did not testify in his defense). 

 

(the privilege against self-incrimination provides an accused servicemember with the right not to testify at his court-martial and precludes comment by trial counsel on his silence).

 

(a constitutional violation occurs only if either the defendant alone has the information to contradict the government evidence referred to or the members naturally and necessarily would interpret the summation as comment on the failure of the accused to testify). 


(the discussion to RCM 919 suggests that trial counsel may not argue that the prosecution’s evidence is unrebutted if the only rebuttal could come from the accused).


2002

United States v. Alameda, 57 MJ 190 (admissions by silence continue to be recognized in both military and civilian federal practice; however, Mil.R.Evid. 304(h)(3) prohibits an inference of wrongdoing when the failure to deny an accusation of wrongdoing concerns an offense for which at the time of the alleged failure the person was under official investigation or was in confinement, arrest, or custody; prearrest silence is usually inadmissible and not an act from which guilt can be inferred).

(Appellant’s failure to deny an allegation of domestic assault did not support an inference of guilt and was irrelevant where:  (1) appellant was told that he was being apprehended for an alleged assault; (2) appellant had a history of domestic violence; (3) appellant had been accused of assaulting his wife less that two weeks earlier; (4) appellant had been ordered to stay away from her because of the incident; and (5) even if appellant’s silence constituted an admission, it would admit only an “alleged assault,” not attempted premeditated murder).

(military judge committed constitutional error by permitting the prosecution to introduce evidence of appellant’s post-apprehension silence as substantive evidence of guilt, and to then comment on that evidence in closing argument).

(instructions that did not address the question whether any adverse inference could be drawn from appellant’s silence at the time of his apprehension did not cure the error in trial counsel’s argument and may have exacerbated it by leading the members to conclude that they were permitted to draw an adverse inference from appellant’s silence at the time of his apprehension).

2000

United States v. Ruiz, 54 MJ 138 (a person’s failure to deny an accusation of wrongdoing concerning an offense for which at the time of the alleged failure the person was under official investigation does not support an inference of an admission of the truth of the accusation).

(cross-examination by trial counsel focused on attacking the accused’s version of the events in an AAFES security office, in which the accused portrayed himself as an innocent man wrongly accused by the lying AAFES security personnel; questioning on cross-examination about whether the accused had protested his innocence and why the accused did not proclaim his innocence to a law enforcement officer who arrived later were proper cross-examination and not improper comment on the accused’s silence ).



Article 31:

2012 (September Term)

United States v. Mott, 72 M.J. 319 (a waiver of an accused’s Fifth Amendment and Article 31, UCMJ, rights to counsel must be knowing and intelligent, and not merely voluntary). 

(an accused’s statement during a custodial interrogation is inadmissible at trial unless the prosecution can establish that the accused in fact knowingly and voluntarily waived Miranda rights).

(in the military system the accused’s right to counsel, and the requirement of knowing and voluntary waiver, are not limited to custodial interrogation; military officials and civilians acting on their behalf are required to provide rights warnings prior to interrogating a member of the armed forces if that servicemember is a suspect, irrespective of custody).  

(voluntariness of consent and knowing waiver of an accused’s right to counsel are two distinct and discrete inquiries; in addition to showing that the waiver was voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception, the government must also demonstrate that the accused understood his right to counsel and intelligently and knowingly relinquished it). 

(the accused has to have full awareness of both the nature of the right to counsel being abandoned and the consequences of the decision to abandon it; however, the Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege; in other words, the accused must fully understand the nature of the right and how it would likely apply in generalin the circumstances, even though the defendant may not know the specific detailed consequences of invoking it; the analysis should take into account the accused’s age, experience, education, background, and intelligence, and his capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights; and the government must show waiver by a preponderance of the evidence). 

(there are two branches to the waiver of the right to counsel analysis; first, was the waiver voluntary; and, second, was the waiver knowing and intelligent). 

(whether an accused’s waiver of his right to counsel was knowing and intelligent is a conclusion of law rather than a conclusory finding of fact). 

United States v. Hutchins, 72 M.J. 294 (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). 

(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). 

2008 (September Term)


United States v. Chatfield, 67 M.J. 432 (by its terms, Article 31(b), UCMJ, only applies when a member of the military interrogates, or requests any statement from, an accused or a person suspected of an offense).


United States v. Delarosa, 67 M.J. 318 (under Article 31(b), UCMJ, and MRE 305(b)(1) and (c), military officials and civilians acting on their behalf are required to provide rights warnings prior to interrogating a member of the armed forces if that servicemember is a suspect, irrespective of custody).  


2007

 

United States v. Gardinier, 65 M.J. 60 (a military investigator who interviews a suspect must provide that suspect with the statutorily required rights warnings under Article 31(b), UCMJ; with few exceptions, statements obtained in violation of this article may not be received in evidence against an accused in a trial by court-martial).

 

(a military judge’s failure to exclude an accused’s statement to a military CID agent and an accompanying videotape of that interview, which followed an earlier interview conducted by a civilian detective who gave the accused two Miranda warnings, was error, where the military CID agent failed to give the accused a rights advisement under Article 31(b), UCMJ, and where the civilian detective was not conducting a joint investigation with the military CID agent at the time; Article 31(b) rights differ slightly from Miranda rights; Congress enacted Article 31(d) as a strict enforcement mechanism to implement the rights’ warning requirements of Article 31(b); Article 31(d) provides that no statement obtained from any person in violation of this article may be received in evidence against him in a trial by court-martial; in addition, MRE 305(a) and (c) provide that statements obtained without a proper rights warning are defined as involuntary and excluded from evidence by operation of MRE 304(a)). 

 

(where an earlier statement was involuntary only because the accused had not been properly warned of his Article 31(b), UCMJ, rights, the voluntariness of the second statement is determined by the totality of the circumstances; an earlier unwarned statement is a factor in this total picture, but it does not presumptively taint the subsequent statement; if a cleansing warning has been given -- where the accused is advised that a previous statement cannot be used against him -- that statement should be taken into consideration; if a cleansing statement is not given, however, its absence is not fatal to a finding of voluntariness).


2006


United States v. Brisbane, 63 M.J. 106 (a person subject to the UCMJ for the purposes of Article 31(b) and MRE 305(c) includes a person acting as a knowing agent of a military unit or of a person subject to the code; as such, civilian investigators working in conjunction with military officials must comply with Article 31:  (1) when the scope and character of the cooperative efforts demonstrate that the two investigations merged into an indivisible entity, and (2) when the civilian investigator acts in furtherance of any military investigation, or in any sense as an instrument of the military). 

 

(in this case, the Family Advocacy treatment manager who initially questioned the accused about an incident involving his showing pictures of naked adult women to his eight-year-old stepdaughter was acting as an investigative agent of law enforcement for the purposes of an Article 31 warnings requirement by virtue of her close coordination with base legal and investigative personnel; not only was the manager part of the Child Sexual Maltreatment Response Team (CSMRT) which included an OSI agent and a judge advocate, the CSMRT decided that the manager would conduct the first interview of the accused to determine if there was enough evidence to proceed with the investigation, and the manager said that she was not treating the accused for any condition; the first thing she asked the accused when he arrived for his interview was “[d]id you do it?”; although the cooperative effort required by the Air Force family advocacy instruction does not render every member of the military community a criminal investigator or investigative agent, the manager’s actions here were more akin to an investigative agent than a social worker; thus, she was a person subject to the code for the purposes of Article 31(b) and MRE 305(c)). 

 

(Article 31(b) contains four textual predicates; first, the article applies to persons subject to the UCMJ; second and third, the article applies to interrogation or requests for any statements from an accused or a person suspected of an offense; and fourth, the right extends to statements regarding the offenses of which the person questioned is accused or suspected; with respect to Article 31(b)’s third textual predicate, an appellate court applies an objective test; whether a person is a suspect is an objective question that is answered by considering all the facts and circumstances at the time of the interview to determine whether the military questioner believed or reasonably should have believed that the servicemember committed an offense). 

 

(in this case, the accused was entitled to an Article 31 rights advisement prior to his being interviewed by the Family Advocacy Treatment manager where the manager was a person subject to the code by virtue of her close coordination with base legal and investigative personnel, where she suspected the accused of an offense, and where the first question she asked the accused was whether he committed the offense). 

 

United States v. Cohen, 63 M.J. 45 (Article 31(b) contains four textual predicates; first, the article applies to persons subject to the UCMJ; second and third, the article applies to interrogation or requests for any statements from an accused or a person suspected of an offense; and fourth, the right extends to statements regarding the offenses of which the person questioned is accused or suspected).

 

(where a military questioner is performing a law enforcement or disciplinary investigation, and the person questioned is suspected of an offense, then Article 31 warnings are required; whether the questioner should be considered to be performing such an investigation is determined by assessing all the facts and circumstances at the time of the interview to determine whether the military questioner was acting or could reasonably be considered to be acting in an official law-enforcement or disciplinary capacity). 

 

(where the military questioner is not acting in a law enforcement or disciplinary capacity, rights warnings are generally not required, because military persons not assigned to investigate offenses, do not ordinarily interrogate nor do they request statements from others accused or suspected of crime). 

 

(where the military questioner is acting in an unofficial capacity and the person questioned does not perceive the questioning as more than casual conversation, warnings are not required; such an informal exchange would not implicate the interrogation or statement predicate of Article 31(b) or Congress’ concern that, in the military context, junior enlisted personnel might feel undue pressure to make incriminating statements). 

 

(Article 31(b) is interpreted in a manner that recognizes the difference between questioning focused solely on the accomplishment of an operational mission and questioning to elicit information for use in disciplinary proceedings; where there is a mixed purpose behind the questioning, the matter must be resolved on a case-by-case basis, looking at the totality of the circumstances, including whether the questioning was designed to evade the accused’s constitutional or codal rights). 

 

(questioning by a military superior in the chain of command will normally be presumed to be for disciplinary purposes, and a rights warning will be required). 

 

(with respect to Article 31(b)’s third textual predicate (i.e., whether a person is a suspect), this Court applies an objective test; whether a person is a suspect is an objective question that is answered by considering all the facts and circumstances at the time of the interview to determine whether the military questioner believed or reasonably should have believed that the servicemember committed an offense). 

 

(the military judge’s finding that the IG had no criminal investigator or disciplinary duties that would require the IG to give a rights warning was clearly erroneous; although the IG’s responsibilities were primarily administrative, they were not exclusively so; among other things, the IG was responsible for investigating wrongdoing and reporting criminal violations to the office of special investigations; significantly, the confidentiality that the IG could offer to complainants did not extend to criminal conduct). 

 

(in an interview with appellant concerning his complaints about the length of time it was taking to process his security clearance and the denial of a leave request, the IG should have reasonably suspected appellant of the offense of indecent acts and given him an Article 31(b) rights warning when appellant described his role in taking pictures of a rape incident).  

 

2005

 

United States v. Rodriguez, 60 MJ 239  (there are at least two circumstances when civilian investigators working in conjunction with military officials must comply with Article 31 warning requirement: (1) when the scope and character of the cooperative efforts demonstrate that the two investigations merged into an indivisible entity; and (2) when the civilian investigator acts in furtherance of any military investigation, or in any sense as an instrument of the military).

 

(ATF agent was not acting as an instrumentality of the military when agent began questioning appellant during investigatory stop and search of his vehicle, and thus agent was not required to advise him of his Article 31 rights; ATF agent was conducting a separate and independent ATF investigation; surveillance support that NIS provided prior to the stop did not amount to a military investigation that merged indivisibly with the ATF efforts).

 

United States v. Traum, 60 MJ 226 (no person subject to the UCMJ may interrogate or request any statement from a person suspected of an offense without first warning that person in accordance with Article 31(b); interrogation includes any formal or informal questioning in which an incriminating response either is sought or is a reasonable consequence of such questioning). 

 

2003

United States v. Pipkin, 58 MJ 358 (it is not necessary to spell out the details of an accused's connection with the matter under inquiry with technical nicety; moreover, advice as to the nature of the charge need not be spelled out with the particularity of a legally sufficient specification; it is enough if, from what is said and done, the accused knows the general nature of the charge; a partial advice, considered in light of the surrounding circumstances and the manifest knowledge of the accused, can be sufficient to satisfy the notice requirement of Article 31, UCMJ).

(it is not necessary that an accused or suspect be advised of each and every possible charge under investigation, nor that the advice include the most serious or any lesser-included charges being investigated; nevertheless, the accused or suspect must be informed of the general nature of the allegation, to include the area of suspicion that focuses the person toward the circumstances surrounding the event).

(possible factors that might be considered in determining whether the nature-of-the-accusation requirement is satisfied include whether the conduct is part of a continuous sequence of events, whether the conduct was within the frame of reference supplied by the warnings, or whether the interrogator had previous knowledge of the unwarned offenses; these factors are not exhaustive, but are among the possible factors to be considered; necessarily, in questions of this type, each case must turn on its own facts; other factors might also bear on the application of Article 31(b), including, as in this case, the complexity of the offense at issue).

(the precision and expertise of an attorney in informing an accused of the nature of the accusation under Article 31 is not required).

(a warning on distribution will better orient a suspect to a suspicion of conspiracy to distribute than a warning on use and possession; the Government has the burden of establishing compliance with rights warning requirements by a preponderance of the evidence; the military judge concluded that the Government had met its burden in this case; the discrepancy between the oral warning (use, possession, and distribution) and the rights advisement form (use and possession) is not enough to find the military judge’s findings clearly erroneous; appellant’s response to investigators, that the interview had to do with his former roommate (and conspirator) and drugs, makes it clear that he was oriented to the nature of the accusation; thus, we hold that the charged conspiracy was within the frame of reference supplied by the warnings for the purposes of Article 31, UCMJ).

United States v. Traum, 60 MJ 226 (a request to take a polygraph may arise in a variety of circumstances related to interrogation; in each instance, the question will be whether an incriminating response is sought or is the reasonable consequence of the comment or remark; of course, an Article 31(b) rights advisement prior to such a question would remove the necessity for such analysis). 

 

(in this case, a law enforcement agent’s request that the accused take a polygraph was not an interrogation or request for a statement within the meaning of Article 31, and did not require warnings, where the reasonable consequence of the request was not an incriminating response; the reasonable consequence of the agent’s question in the context presented was either yes or no; in addition, the polygraph and its operator were located in an adjacent room, and the agent’s objective was to encourage the accused to take a polygraph and not to ask questions that might serve as an investigative substitute for what the agents hoped to garner from the administration of the polygraph exam). 

 

2002

United States v. Guyton-Bhatt, 56 MJ 484 (there is a two-prong test to determine whether an Article 31 warning is required:  (1) was a questioner subject to the Code acting in an official capacity in his inquiry or only with a personal motivation; and (2) whether the person questioned perceived that the inquiry involved more than a casual conversation).

(Article 31, UCMJ, warnings are not required to be given by:  (1) a military doctor, psychiatric social worker, or nurse prior to asking questions of a patient for medical diagnosis or treatment; (2) an in-flight aircraft crew chief prior to questioning, for operational reasons, an irrational crewman about possible drug use; (3) military pay officials questioning a servicemember about a pay or allowance entitlement; or (4) a negotiator trying to end an armed standoff, provided the discussion was truly designed to end the standoff, rather than to obtain incriminating statements to be used against the suspect at trial).

(military defense counsel may not deliberately seek incriminating answers from a suspect unrepresented by counsel without first giving Article 31, UCMJ, rights warnings).

(legal assistance officer who, upon being shown a promissory note, suspected forgery and felt appellant had committed a criminal offense, who recommended only criminal action, and who called appellant using the authority of his position to solicit information on the matter, was acting as an investigator in pursuing this criminal action and was required to give an Article 31 warning).

(where nearly all of the information secured by a legal assistance officer in violation of Article 31 was introduced at trial through independent sources, the error in admitting appellant’s statements to the legal assistance officer was harmless beyond a reasonable doubt.

(Article 31(b) would apply to a foreign interrogation only if it is shown that the foreign authorities were acting as an agent of the military during their interrogations of a suspect).

(under either a de novo standard of review or clearly erroneous standard because under either standard, the military judge’s ruling was correct because appellant did not meet his burden of establishing that the Icelandic investigators were acting under the control or at the direction of the Naval investigators so as to trigger a requirement for Article 31 warnings).

(limited assistance that NCIS agents provided to the Icelandic police in this case, such as locating appellant and American witnesses, was undertaken pursuant to the defense agreement between the two countries, and did not constitute “participation” within the meaning of the Mil.R.Evid. 305(h)(2)).

United States v. Alameda, 57 MJ 190 (privilege against self-incrimination recognized in Article 31(a), supra, is virtually identical to the privilege under the Fifth Amendment; thus, Fifth Amendment analysis also applies to Article 31(a)).

United States v. Benner, 57 MJ 210 (when a chaplain questions a penitent in a confidential and clerical capacity, the results may not be used in a court-martial because they are privileged; therefore, the Article 31(b) and Tempia warnings are not required; conversely, if a military officer who is also a chaplain acts on the premise that the penitent’s disclosures are not privileged, then warnings are required).

(a chaplain was acting outside his responsibilities as a chaplain, and he was acting solely as an Army officer where the chaplain informed appellant that he was obliged to report appellant’s action; as such, he was required to provide an Article 31 warning before further questioning).

2001

United States v. Simpson, 54 MJ 281 (the government has the burden of establishing compliance with rights warning requirements by a preponderance of the evidence).

(whether that portion of the rights warning requiring that the suspect be informed of “the nature of the accusation” was inconsistent with applicable rights warning requirements is reviewed de novo).

(in fulfilling the obligation of inform a suspect about the nature of the accusation, it is not necessary that an accused or suspect be advised of each and every possible charge under investigation, nor that the advice include the most serious or any lesser-included offenses being investigated; nevertheless, the accused or suspect must be informed of the general nature of the allegation, to include the area of suspicion that focuses the person toward the circumstances surrounding the event).

(among the factors to consider in determining whether a suspect has been satisfactorily informed about the nature of the accusation are:  whether the conduct is part of a continuous sequence of events; whether the conduct was within the frame of reference supplied by the warnings; or whether the interrogator had previous knowledge of the unwarned offenses).

(advising suspect that he was being questioned about indecent acts or liberties with a named individual sufficiently oriented appellant to the nature of the accusations against him where the indecent acts and sodomy were sufficiently related so that the warning oriented appellant toward the nature of the accusations against him).

United States v. Norris, 55 MJ 209 (Article 31(b) applies only to situations in which, because of military rank, duty, or other similar relationship, there might be subtle pressure on a suspect to respond to an inquiry, and two prerequisites must be met before Article 31(b) will apply:  (1) a questioner subject to the Code was acting in an official capacity in his inquiry as opposed to only having a personal motivation; and (2) the person questioned must perceive that the inquiry involved was more than a casual conversation).

(in reviewing a military judge’s ruling on a motion to suppress under Article 31(b), Court applies a clearly-erroneous standard of review to findings of fact and a de novo standard to conclusions of law).

(questioner was acting in a personal rather than an official capacity in conversation with accused, and Article 31(b) did not apply, where:  (1) the questioner’s purpose was to understand and clarify the content of a letter written by his daughter to a man who had become a friend; (2) questioner did not seek out the accused with a view towards elevating the matter to a criminal investigation and prosecution; (3) at the time of the conversation, questioner considered the situation to be a family matter; and (4) the findings of fact, supported by the evidence, indicate that the conversation was between friends).

United States v. Catrett, 55 MJ 400 (whether a suspect is in custody for purposes of Miranda warnings is a de novo question of law to be decided on the basis of the facts found by the factfinder).

(appellant was in custody for purposes of Miranda warnings where:  (1) the police told appellant he was not free to leave the living room unless a police officer accompanied him; (2) there was always an officer present to control appellant’s movements; (3) an officer testified that appellant was under detention, not free to leave, and would have been stopped if he attempted to do so; and (4) appellant never left the living room until he was taken to the police station).

(a “public safety” exception to Miranda warnings requirement applied where:  (1) civilian police were responding to a domestic-assault complaint in which a gun was reportedly involved; (2) an empty holster was found during a search of appellant’s apartment before the challenged questioning; and (3) the questions asked by the police, although phrased in terms of the cause of the reported assault, were found by the judge to be legitimate attempts by police to locate the still-missing gun).

(U.S. Court of Appeals for the Armed Forces rejects argument that exceptions to the constitutionally based Miranda rule may not be carved out by the Supreme Court, citing Dickerson v. United States, 530 U.S. 428, 441 (2000)).

(assuming a Miranda violation, admitting appellant’s statement to civilian police that he hit the victim with a dog bone and a statue was harmless beyond a reasonable doubt where the victim testified to the same assault, eyewitness statements from appellant’s wife to the same effect were admitted, and the bloodied dog bone was discovered in plain view before appellant made the challenged incriminating admissions).

2000

United States v. Swift, 53 MJ 439 (Congress, by statute, has provided members of the armed forces with a rights’ warning requirement that is broader than the warnings required in a civilian setting as a matter of constitutional law under Miranda v. Arizona, 384 U.S. 435 (1966)).

(case law has interpreted Article 31 in a manner that recognizes the differences between questioning focused on the accomplishment of a military mission and questioning to elicit information for use in disciplinary proceedings; thus, warnings under Article 31 have been required where:  (1) the person being interrogated is a suspect at the time of the questioning; and, (2) the person conducting the questioning is participating in an official law enforcement or disciplinary investigation or inquiry).

(whether a person is a “suspect” is an objective question that requires consideration of all the facts and circumstances at the time of the interrogation to determine whether the military questioner believed or reasonably should have believed that the servicemember committed an offense).

(whether questioning is for law enforcement or disciplinary purposes is determined by assessing all the facts and circumstances at the time of the interview to determine whether the military questioner was acting or could reasonably be considered to be acting in an official law-enforcement or disciplinary capacity).

(questioning by a military superior in the immediate chain of command will normally be presumed to be for disciplinary purposes).

(findings of fact made in support of a ruling on a motion to suppress a statement on the grounds that Article 31 was not complied with are reviewed using a clearly-erroneous standard; conclusions of law are reviewed de novo).

(information coming to the attention of a military official that raises questions about the eligibility status of a servicemember’s spouse or dependents for military benefits does not, in itself, establish a basis for designating that member as a suspect for purposes of Article 31, even if the questioning official has a “hunch” that further inquiries may disclose a crime).

(in light of the relatively low quantum of evidence required to treat an individual as a suspect, appellant reasonably should have been viewed as a suspect of the offense of bigamy where the commander and first sergeant had information generally reflecting two alleged wives, an alleged divorce decree which the first wife claimed to know nothing about and which could not be confirmed by resort to civilian court records, and conflicting data about appellant’s spouse in military records; where the first sergeant also had recently counseled appellant on matters relating to first wife, yet second wife asserted that a divorce had taken place two years earlier; where first sergeant considered this situation unusual and consulted the Manual for Courts-Martial concerning bigamy; and where, when appellant denied the allegations, first sergeant advised appellant of the maximum punishment for bigamy).

(under circumstances of this case, government failed to rebut the strong presumption that first sergeant was part of an investigation that included disciplinary purposes).

(exclusionary rule of Article 31(d) applies to all offenses, no matter how serious).

(an unwarned statement made during an investigation and obtained in violation of Article 31(b) may not be introduced by the prosecution against a non-testifying servicemember to prove the offense of false official statement).

(with respect to conviction for bigamy, court was satisfied beyond a reasonable doubt that appellant was not prejudiced by unwarned statements where significant evidence was adduced which was not derived from the unwarned statements).

(court set aside conviction for false official statement based directly upon inadmissible, unwarned statements of appellant).

(a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief when the creation of those documents was not compelled within the meaning of the privilege against self-incrimination; the contents of documents voluntarily prepared before the compelled production are not protected by the Fifth Amendment or Article 31(a) because the documents could not be said to contain compelled testimonial evidence).

(where the record indicated that appellant voluntarily created a purported divorce decree before first sergeant requested its production, appellant could not have objected to producing a divorce decree solely on the basis that the fraudulent contents were incriminating).

(under the required records exception to the Fifth Amendment and Article 31(a), neither the content nor the act of production of documents are protected by the Fifth Amendment if the government can satisfy the following test:  (1) the requirement that the records be kept must be essentially regulatory; (2) the records must be the kind which the regulated party has customarily kept; and (3) the records themselves must be either public documents or have assumed public aspects which render them at least analogous to public documents).

(even if appellant’s act of producing a divorce decree had testimonial aspects which were arguably incriminating, the production would fall within the “required records” exception to the Fifth Amendment and Article 31(a) where:  (1) the requirement to produce a divorce decree in order to establish and update military records supporting spousal eligibility for benefits was regulatory and served a legitimate administrative purpose; (2) a divorce decree is the type of record customarily kept by a party; and (3) it is a public record).

1999

United States v. Mitchell, 51 MJ 234 (in deciding whether questioning by command authorities constitutes interrogation, care must be exercised to ensure that a suspect’s sense of loyalty, trust, and confidence in leaders does not obscure his/her legal rights under the Constitution and the UCMJ).

(totality of the circumstances will be considered to determine whether questioning by a representative of command is an interrogation).
 

Corroboration:

2011 (September Term)

United States v. McClain, 71 M.J. 80 (the standard for corroboration is very low; corroborating evidence must raise only an inference of truth as to the essential facts admitted; this inference may be drawn from a quantum of corroborating evidence that has been described as very slight).

2008 (Transition)


United States v. Harcrow, 66 M.J. 154 (admissions can only be used as evidence if they are independently corroborated; under MRE 304(g), an admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been introduced that corroborates the essential facts admitted to justify sufficiently an inference of their truth; the standard for corroboration is very low; corroborating evidence must raise only an inference of truth as to the essential facts admitted; this inference may be drawn from a quantum of corroborating evidence that has been described as very slight).    

 

2005

 

United States v. Arnold, 61 M.J. 254 (MRE 304(g) provides that an admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence has been introduced that corroborates the essential facts admitted to justify sufficiently an inference of their truth; independent evidence is evidence that is not based on or derived from the accused’s extrajudicial statements).

(the principle of corroboration embedded in MRE 304(g), like the principle underpinning its civilian counterparts, is intended to guard against the false or coerced confession; however, corroborating evidence need not confirm each element of an offense, but rather must corroborate the essential facts admitted to justify sufficiently an inference of their truth; this inference may be drawn from a quantum of corroborating evidence that this Court has described as very slight).

(testimony solely derived from a witness’s review of an accused’s confession cannot independently serve to corroborate that confession).


2004

 

United States v. Seay, 60 MJ 73 (an admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, had been introduced that corroborates the essential facts admitted to justify sufficiently an inference or their truth; the corroboration requirement for admission of a confession at court-martial does not necessitate independent evidence of all the elements of an offense or even of the corpus delicti of the offense; rather, the corroborating evidence must raise only an inference of truth as to the essential facts admitted; moreover, while the reliability of the essential facts must be established, it need not be done beyond a reasonable doubt or by a preponderance of the evidence).

   

(appellant and the other person named in the confession were seen with the victim shortly before he disappeared; the victim died as a result of foul play; the victim’s body was found in a concealed place; the post-mortem revealed no wallet; and no wallet was ever found; for the purposes of corroborating a confession, there is no requirement that the members conclude beyond a reasonable doubt, or even by a preponderance of the evidence, that the corroborating facts alone (i.e., without the confession) establish that this victim, in fact, carried a wallet at the time of death; rather, the rule simply requires a presence of facts that enable the members to infer the truth of the essential facts in the confession; when a person confesses to participation in the larceny of a wallet, it is reasonable to infer the truth of the confession from the fact that the victim named in the confession knew the appellant, died as a result of foul play, was found in a concealed place, and did not have a wallet at the time or thereafter; we therefore hold that these reasonable inferences adequately corroborated appellant’s confession).

 

2002

United States v. Cravens, 56 MJ 370 (appellant admitted on April 1, 1997, to “doing a line”, and a police officer observed that appellant’s demeanor at that time also suggested recent drug use; scientific evidence further indicating drug use which was proximate in time to the charged use is, at the very least, relevant to corroborate his confession).

United States v. Grant, 56 MJ 410 (military judge did not abuse his discretion by admitting a drug screen report on the issue of whether or not appellant’s confession was worthy of belief where he expressly stated that he was admitting the report for the limited purpose of corroborating the confession and instructed the members accordingly; the fact that there are additional foundational requirements for admitting a urinalysis offered on the substantive issue of wrongful use does not change the law of evidence pertaining to the admissibility of a business record offered to corroborate a confession).

(although a chain of custody is a foundational prerequisite for admitting real or tangible evidence on a substantive issue in the case, a drug screen, introduced to corroborate appellant’s confession, was not offered to show the actual state of the urine sample or commission of a substantive offense; appellant’s confession was the evidence offered on his wrongful use during the period charged).

(a confession must be corroborated by independent evidence justifying sufficiently an inference of truth of the essential facts admitted in order to ensure that the confession is not false).

(the quantum of evidence needed to corroborate a confession may be very slight).

(the drug screen report as corroboration evidence indicated the actual presence of the substance in appellant’s system in late November, and raised an inference that appellant had recently used the very substance he had confessed to using over the previous five or six weeks).

2001

United States v. Baldwin, 54 MJ 464 (the corroboration requirement for admission of a confession at court-martial does not necessitate independent evidence of all the elements of an offense or even the corpus delicti of the confessed offense; rather, the corroboration must raise only in inference of truth as to the essential facts admitted, and the reliability of the essential facts need only be established by a preponderance of the evidence.

(where the military judge made detailed findings of fact, those findings adequately corroborated the facts contained in appellant’s confession where the judge’s findings had direct corroborative value as to two specific facts in appellant’s confession and raised an inference of truth as to the essential facts admitted in the confession).



Invocation of Rights:

2012 (September Term)

United States v. Hutchins, 72 M.J. 294 (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). 

(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).   

2008 (September Term)


United States v. Delarosa, 67 M.J. 318 (if a suspect provides an ambiguous statement regarding invocation of rights after Miranda warnings have been given, law enforcement officials are not obligated to cease interrogation). 

 

(if a suspect’s statement regarding invocation of Miranda rights is ambiguous, law enforcement officials may attempt to clarify the issue of rights invocation, but they are not required to do so; they may continue questioning unless the suspect unambiguously invokes his rights, regardless of whether law enforcement officials have endeavored to clarify any ambiguity).

 

(if a suspect unambiguously invokes his or her rights under Miranda, law enforcement officials may not conduct any further questioning of the suspect about the offense unless they do so in a manner demonstrating that they have scrupulously honored the suspect’s invocation of rights). 

 

(in assessing whether a person provided an unambiguous invocation of Miranda rights, the Supreme Court has stated that the invocation must be sufficiently clear that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney or to remain silent). 

 

(after answering “YES” to other Miranda rights-waiver questions, appellant did not unambiguously invoke his right to remain silent prior to questioning by civilian law enforcement officers concerning the death of his infant son when he inserted the word “NO” next to the question about whether he waived his rights and desired to make a statement, where appellant stated several times that he wanted to talk to the officers about his son’s death, where he indicated, when the officers attempted to clarify his “NO” response, that he would make a statement if a command representative were present, and where he then initiated a conversation containing a potentially exculpatory statement). 


2007


United States v. Moran, 65 M.J. 178 (MRE 301(f)(3) provides that the fact that the accused during official questioning and in exercise of rights under the Constitution requested counsel is inadmissible against the accused). 

 

(in the American system of justice, the exercise of the right to counsel is proof of neither guilt nor innocence).


2006


United States v. Haney, 64 M.J. 101 (MRE 301(f)(3) provides that the fact that an accused during official questioning and in exercise of rights under the Fifth Amendment to the Constitution of the United States or Article 31, remained silent, refused to answer a certain question, requested counsel, or requested that the questioning be terminated is inadmissible against that accused; MRE 301(f)(3) reaffirms the long-standing general rule that trial counsel cannot make capital of an accused’s exercise of his Article 31 rights). 

 

2004

 

United States v. Seay, 60 MJ 73 (appellant’s numerous references to counsel did not affect appellant’s confession because appellant did not make an unambiguous request for counsel, and appellant’s references to counsel did not occur during the custodial interrogation).  

 

United States v. Traum, 60 MJ 226 (the right to remain silent protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used; application of the privilege is not limited to persons in custody or charged with a crime; it may also be asserted by a suspect who is questioned during the investigation of a crime).

 

(this Court has established that if an individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease; in addition, the MCM provides that if a person chooses to exercise the privilege against self-incrimination, questioning must cease immediately).

 

(although no particular words or actions are required to exercise one’s Fifth Amendment right to silence, this Court has held that its invocation must be unequivocal before all questioning must stop). 

 

(the accused’s response that she did not want to talk about the details of the night that her infant daughter died did not unequivocally invoke her right to remain silent as this response did not foreclose the possibility that she was willing to take a polygraph and discuss other aspects of the investigation, such as the child’s medical history or the manner in which she cared for her child). 

 

2002

United States v. Gilley, 56 MJ 113 (the government may not use a defendant’s assertion of his Fifth Amendment rights as substantive evidence against him, and under Mil.R.Evid. 301(f)(3) this prohibition applies equally to both comments on the accused’s right to remain silent and comments on the accused’s right to counsel, both of which flow from the Fifth Amendment).

(violations of the prohibition against commenting on the accused’s assertion of his Fifth Amendment rights are subject to harmless error review).

(the government is permitted to make "a fair response" to claims made by the defense, even when a Firth Amendment right is at stake).

(where prosecutorial comments are a fair response to a claim made by the defendant or his counsel, there is no violation of the Fifth Amendment privilege against self-incrimination).

(reference to appellant’s request for counsel may have fairly rebutted the defense theory concerning pretrial statement and was not used as substantive evidence of guilt against appellant; even if it was error to allow the testimony, given the context in which the issue arose here, court found no material prejudice to appellant’s substantial rights and, thus, no plain error).

(because appellant failed to object to testimony that he did not read written statement and requested counsel, and since the testimony contradicted appellant’s claim that he read the statement but refused to sign it because it was full of lies, court found that defense counsel opened the door to the use of this testimony for that limited purpose).  


Motions to suppress:

2012 (September Term)

United States v. Mott, 72 M.J. 319 (on a motion to suppress an accused’s statements to investigators, alleging that the statements were involuntary because he was mentally ill at the time, a military judge abused his discretion by admitting the accused’s statement without first contextually analyzing whether he could and did knowingly and intelligently waive his right to counsel, and instead focusing solely on the question of voluntariness; the military judge also erred when he addressed whether an accused’s waiver was knowing and intelligent solely as a conclusory finding of fact, rather than as a conclusion of law). 

2001

United States v. Simpson, 54 MJ 281 (denial of a motion to suppress a confession is reviewed under an abuse of discretion standard, and the trial judge’s findings of fact are accepted unless they are clearly erroneous).  


Rule of completeness:

2008 (September Term)

United States v. Wuterich, 67 M.J. 32 (the rule of completeness is a rule that benefits the party opposing admission of evidence, not the party offering the evidence).


2001

United States v. Goldwire, 55 MJ 139 (Mil. R. Evid. 304(h)(2) allows the defense to complete an admission or confession whether it is oral or in writing, and provides the defense the option of doing so using Mil. R. Evid 106 or 304(h)(2)).  


Self-incrimination:

2012 (September Term)

United States v. Hutchins, 72 M.J. 294 (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). 

2008 (September Term)

United States v. Paige, 67 M.J. 442 (members of the armed forces, like their civilian counterparts, may not be compelled to incriminate themselves in a criminal case). 

 

(a military accused has the right not to testify, and trial counsel may not comment directly, indirectly, or by innuendo, on the fact that an accused did not testify in his defense). 

 

(the privilege against self-incrimination provides an accused servicemember with the right not to testify at his court-martial and precludes comment by trial counsel on his silence).

 

(a constitutional violation occurs only if either the defendant alone has the information to contradict the government evidence referred to or the members naturally and necessarily would interpret the summation as comment on the failure of the accused to testify). 

 
(the discussion to RCM 919 suggests that trial counsel may not argue that the prosecution’s evidence is unrebutted if the only rebuttal could come from the accused). 

1999

United States v. Sanchez, 51 MJ 165 (conviction for failing to report serious offense did not violate appellant’s Fifth Amendment right against self-incrimination where appellant could have reported the offense immediately without incurring criminal liability).

(appellant’s unconditional guilty plea waived claim that conviction for failing to report serious offense violated appellant’s Fifth Amendment right against self-incrimination).

United States v. Gray, 51 MJ 1 (statements made by appellant pursuant to a guilty plea in state court were not admitted at court-martial in violation of appellant’s Fifth Amendment right against self-incrimination as appellant had received rights warnings, invoked right to counsel, consulted with counsel, and agreed to provide information to both the police and to state court, and did so, in the presence of counsel).  


Subsequent Confessions:

 

2007

United States v. Gardinier, 65 M.J. 60 (where an earlier statement was involuntary only because the accused had not been properly warned of his Article 31(b), UCMJ, rights, the voluntariness of the second statement is determined by the totality of the circumstances; an earlier unwarned statement is a factor in this total picture, but it does not presumptively taint the subsequent statement; if a cleansing warning has been given -- where the accused is advised that a previous statement cannot be used against him -– that statement should be taken into consideration; if a cleansing statement is not given, however, its absence is not fatal to a finding of voluntariness). 

 

(after the accused received a proper Article 31(b) rights advisement, his decision to make a statement to a military CID agent despite an earlier unwarned statement was made voluntarily, where the agent told the accused that another statement was needed because he may not have been properly warned of his rights before the earlier statement, the accused signed the written rights advisement indicating that he waived his rights before giving his subsequent statement, there was no suggestion that either statement was given at a coercive event, and the accused’s relative age and maturity level did not raise voluntariness concerns). 


2006


United States v. Brisbane, 63 M.J. 106 (where an earlier confession was “involuntary” only because the accused had not been properly warned of his panoply of rights to silence and to counsel, the voluntariness of the second confession is determined by the totality of the circumstances; the earlier, unwarned statement is a factor in this total picture, but it does not presumptively taint the subsequent confession; one of the circumstances that is taken into account is the presence of a cleansing warning). 

 

(the absence of a cleansing warning before a second confession after an earlier involuntary confession is not fatal to a finding that the second confession was voluntary).   

 

(in this case, the accused’s subsequent statements to an OSI agent after he gave an unwarned statement to a Family Advocacy treatment manager were voluntary and admissible even though the agent did not give him a cleansing warning that his prior statement could not be used against him, where the interview with the agent occurred almost a month and a half after the initial interview with the treatment manager, giving the accused a substantial amount of time to weigh the pros and cons of continuing to talk with military authorities, where the accused was a mature, experienced servicemember - a twenty-eight-year-old staff sergeant with almost ten years of military service, and where the conditions of the accused’s second interview were not coercive or inhumane).


2004

 

United States v. Seay, 60 MJ 73 (we hold that even assuming appellant’s Fifth Amendment rights, Article 31(b), and the MREs were violated by the authorities’ continued interrogation of appellant despite his invocation of the right to silence during the first questioning, the failure to provide appellant appropriate rights warnings during the pretextual phone calls, and the failure to terminate the pretextual phone calls, appellant’s eventual confession was untainted). 

 

(immediately prior to appellant’s confession, he was reminded again that he could remain silent and could consult with a lawyer, and was carefully given a full and fair opportunity to exercise these options; appellant waived those rights anew, and in so doing created a clean slate for his confession; because appellant’s confession was untainted by prior events, the military judge did not abuse his discretion in admitting the confession into evidence at trial). 


2002

United States v. Benner, 57 MJ 210 (confession that follows an earlier confession obtained due to actual coercion, duress, or unlawful inducement is presumptively tainted).

(a confession taken in compliance with Article 31(b) and Mil.R.Evid. 305 that follows an earlier unwarned confession obtained in violation of Article 31(b) and Mil.R.Evid. 305 is not presumptively tainted, but is admissible if the subsequent confession is determined to be voluntary by the totality of the circumstances).

(in determining whether a subsequent confession is voluntary under the totality of the circumstances test, some of the relevant circumstances include:  (1) the earlier, unwarned statement, but it does not presumptively taint the subsequent confession; (2) the fact that the subsequent confession was preceded by adequate warnings; and (3) while a cleansing warning is not a prerequisite to admissibility, an earlier unwarned statement and the lack of a cleansing warning before the subsequent statement are also part of the totality of the circumstances).

(where actual coercion, duress, or unlawful inducement was not involved in an initial unlawful confession, the totality of the circumstances is reviewed de novo to determine, as a matter of law, whether appellant’s subsequent confession meets the following test:  Is the confession the product of an essentially free and unconstrained choice by its maker?  If it is, if he has willed to confess, it may be used against him.  If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process).

(although CID advised appellant of his rights prior to a subsequent confession, the chaplain had made it clear that if he invoked his rights, the chaplain would reveal his confession; such facts contribute to a holding that the Government did not carry its burden of establishing that appellant’s confession was voluntary).



Voluntariness:

2012 (September Term)  

United States v. Mott, 72 M.J. 319 (mental illness does not make a statement involuntary per se; voluntariness depends on the absence of police overreaching; regardless of the accused’s mental state, a confession will not be suppressed for involuntariness absent coercive police activity). 

2008 (September Term)

United States v. Chatfield, 67 M.J. 432 (while Miranda warnings provide procedural safeguards to secure the right against self-incrimination during custodial interrogations, the Due Process Clauses of the Fifth and Fourteenth Amendments protect an accused generally against the admission of any involuntary statements, whether made in or out of custody).

 

(when introducing a confession, the government has the burden of showing the confession is the product of an essentially free and unconstrained choice by its maker). 

 

(based on the totality of the circumstances, appellant’s statements to a civilian police officer were voluntary, where appellant was an experienced Naval officer, where he was neither ordered by military officers to go to the police station or to give a statement once there, where the civilian police officer did not use any overreaching tactics and was not accusatory, and where the interview with the civilian police officer was short and undertaken with the expectation that appellant would be free to have dinner with other military officers after it was over). 


United States v. Delarosa, 67 M.J. 318 (based on the totality of the circumstances, appellant’s confession was voluntarily, where he was advised of his Fifth Amendment rights from a standardized legal rights advisement form on three separate occasions during the course of his interrogation, but never unambiguously invoked his right to counsel or his right to remain silent, where the atmosphere of the interrogation was not laced with coercion or intimidation and the detective’s tone was never verbally abusive or threatening, and where appellant acknowledged that no one had threatened him into making a statement and that it was a product of his own free will). 


2008 (Transition)

 

United States v. Freeman, 65 M.J. 451 (a confession is involuntary, and thus inadmissible, if it was obtained in violation of the self-incrimination privilege or due process clause of the Fifth Amendment to the Constitution of the United States, Article 31, or through the use of coercion, unlawful influence, or unlawful inducement). 

 

(a court examines the totality of the surrounding circumstances to determine whether the confession is the product of an essentially free and unconstrained choice by its maker; in determining whether an accused’s will was overborne in a particular case, the court assesses both the characteristics of the accused and the details of the interrogation). 

 

(promises are considered only a factor in the totality of the circumstances equation to determine whether a confession is voluntary; they are not of themselves determinative of involuntariness; similarly, lies, threats, or inducements are not determinative either; after all, as the Miranda rules were issued to counter-balance the psychological ploys used by police officials to obtain confessions, the presence of those ploys can hardly be considered to per se result in an involuntary confession). 

 

(as the application of the totality of circumstances standard rests with the particular facts of each case, a threat to turn an accused over to civilian law enforcement is but one factor to weigh in deciding the voluntariness of a confession; a court does not examine each of the facts separately but rather in conjunction with all the other facts in the case). 

 
(in this case, under the totality of the circumstances, appellant’s confession was voluntary, where the characteristics of appellant and the details of the interrogation favored a finding of voluntariness; despite the fact that interrogators lied to appellant about the evidence they had and threatened to turn his case over to civilian authorities where he would face stiffer punishment, appellant was advised of his rights to counsel and to remain silent and waived those rights, he never complained about the process, never asked for an attorney, never asked to stop the interview or leave, or in any other way indicated that he felt coerced or pressured into making a statement, he had several breaks during the interrogation in which he left the interrogation room, went outside, and smoked, he was provided water and declined offers for other food and drink, he was neither physically abused nor threatened with such abuse, and he prepared a written statement by himself, outside the presence of any investigator; under the totality of these circumstances, appellant’s confession was voluntary).

 
2007


United States v. Gardinier, 65 M.J. 60 (where an earlier statement was involuntary only because the accused had not been properly warned of his Article 31(b), UCMJ, rights, the voluntariness of the second statement is determined by the totality of the circumstances; an earlier unwarned statement is a factor in this total picture, but it does not presumptively taint the subsequent statement; if a cleansing warning has been given -- where the accused is advised that a previous statement cannot be used against him -- that statement should be taken into consideration; if a cleansing statement is not given, however, its absence is not fatal to a finding of voluntariness). 


2006


United States v. Finch, 64 M.J. 118 (the failure of a military investigator to notify appellant’s civilian counsel before interrogating appellant to afford his counsel the opportunity to be present at the interrogation, even though the investigator knew that appellant was represented by counsel, did not render appellant’s subsequent statements involuntary under Article 31(d), UCMJ, overruling United States v. McOmber, and accepting MRE 305(e) as controlling authority).

 

(MRE 305(e) provides for two situations where counsel must be present during an interrogation, absent waiver: (1) custodial interrogations and (2) post-preferral interrogation). 

 

United States v. Brisbane, 63 M.J. 106 (in determining whether an accused’s confession was voluntary, a court must assess the totality of all the surrounding circumstances -- both the characteristics of the accused and the details of the interrogation; some of the factors taken into account have included the youth of the accused, his lack of education, or his low intelligence, the lack of any advice to the accused of his constitutional right, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep).

 

2005


United States v. Bresnahan, 62 M.J. 137 (an accused’s confession must be voluntary to be admitted into evidence). 

(the accused’s confession to a detective that he might have shaken his infant son to try to stop his crying was voluntary under the totality of the circumstances, even though the detective pressured the accused by telling him that the doctors needed to know exactly what happened to his son so they could save his life; although the detective had the intent of securing a confession by exploiting the accused’s emotional ties to his son, her statement was accurate, and she was not confrontational or intimidating; in addition, at the time, the accused had served over five years in the Army, did not suffer from any mental deficiency, and was not detained, questioned for a prolonged amount of time, or held in isolation for any amount of time; finally, regardless of whether the accused actually believed the doctors would not help his son unless he confessed, the detective’s statements would not provide a motive for him to lie; if the accused did not shake his son, then telling the detective that he did shake him would not help the doctors determine how to treat the baby appropriately). 


2004

 

United States v. Cuento, 60 MJ 106 (the necessary inquiry in determining the voluntariness of a confession is whether the confession is the product of an essentially free and unconstrained choice by its maker; if, instead, the maker’s will was overborne and his capacity for self-determination was critically impaired, use of his confession would offend due process).

 

(a confession is not automatically inadmissible, even though it was made after another confession which was clearly involuntary; the prosecution must rebut the presumption that the later confession was the result of the same influence which led to the prior confession).

 

(where a confession is obtained at a lawful interrogation that comes after an earlier interrogation in which a confession was obtained due to actual coercion, duress, or inducement, the subsequent confession is presumptively tainted as a product of the earlier one; on the other hand, where the earlier confession was "involuntary" only because the suspect had not been properly warned of his panoply of rights to silence and to counsel, the voluntariness of the second confession is determined by the totality of the circumstances; the earlier, unwarned statement is a factor in this total picture, but it does not presumptively taint the subsequent confession).

 

(when a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession; only those statements that are “actually coerced” require application of the more stringent test generally described in MRE 304(b)(3), as opposed to a showing of voluntariness by totality of the circumstances).

 

(while a so-called “cleansing statement” is a factor to consider in evaluating the voluntariness of a confession made following a prior, unwarned statement, this Court has held that where there are successive statements, it is not a precondition to the admission of a properly obtained statement, that the accused be informed that a previous statement cannot be used against him; however, if there has been an earlier unwarned statement, the absence of a cleansing warning before the subsequent statement is one of the circumstances to be considered in determining voluntariness).

 

(evidence that was obtained as a result of an involuntary statement may be used when the evidence would have been obtained even if the involuntary statement had not been made; even evidence challenged as “derivative” from an involuntary statement is admissible if the military judge finds by a preponderance of the evidence that it was not obtained by use of the statement, or that the evidence would have been obtained even if the statement had not been made). 

 

(in determining whether appellant’s subsequent NCIS statement was voluntary, the Court assumed, arguendo, that his earlier statement was produced by the coercive effect of the prerequisites placed on appellant’s reunification with his family by the California Child Protective Service; however, under the circumstances of this case, particularly the intervening events between the first and second statements, the Government had carried its burden of demonstrating that the first statement did not taint the second statement, and that the second was voluntary; these circumstances included the following factors: (1) appellant was invited, not ordered to NCIS, and he arrived without command escort, (2) appellant was not in custody, (3) appellant made his second statement seven days after the first, with significant time for cool reflection and consultation with an attorney, (4) appellant was told that he was at NCIS voluntarily and could leave at any time, (5) appellant was advised of his rights before his second statement, and he did not ask for an attorney or indicate that he wanted to leave or stop answering questions, (6) no mention was made by the NCIS agents to appellant about his prior statement, and no mention was made of the Child Protective Service prerequisites, and (7) the agents did not make any promises, inducements, or threats).

 

2002

United States v. Benner, 57 MJ 210 (we review de novo a military judge’s determination that a confession is voluntary).

(appellant’s confession to CID was involuntary where appellant went to the chaplain for help but instead he was advised that Army Regulations and the Family Advocacy Center rules mandated that the chaplain “turn him in” and reveal his confession; faced with this Hobson’s choice of confessing to CID or having the chaplain reveal his confession to CID, he had little or no choice but to confess).

(appellant’s will was overborne, his capacity for self-determination was critically impaired, and the use of his confession offends due process where appellant was seeking clerical help, but instead of providing confidential counseling, the chaplain informed appellant that he was obliged to report appellant’s action and thus, unknown to the chaplain, breach the communications to clergy privilege).

(although CID advised appellant of his rights prior to a subsequent confession, the chaplain had made it clear that if he invoked his rights, the chaplain would reveal his confession; such facts contribute to a holding that the Government did not carry its burden of establishing that appellant’s confession was voluntary).

United States v. Ellis, 57 MJ 375 (the voluntariness of a confession is a question of law to be reviewed de novo by examining the totality of all the surrounding circumstances including both the characteristics of the accused and the details of the interrogation).

(the totality of circumstances considered in determining the voluntariness of a confession is not a cold and sterile list of isolated facts - the totality of the circumstances include the condition of the accused, his health, age, education, and intelligence; the character of the detention, including the conditions of the questioning and rights warning; and the manner of the interrogation, including the length of the interrogation and the use of force, threats, promises, or deceptions).

(the soundness of appellant’s physical and psychological character at the time of interrogation are examined as part of the totality of the circumstances to determine whether the statements were voluntary).

(while the detectives’ advice to appellant concerning removing appellant’s remaining children from the home may have contributed to his confession, the mere existence of a causal connection does not transform appellant’s otherwise voluntary confession into an involuntary one; this consequence of appellant’s criminal conduct was unpleasant, but the law enforcement officers’ advice was an accurate picture of what would happen in similar cases).

(the factual question whether a confession is reliable is for the members of a court-martial to decide; military judge finds a confession voluntary as a matter of law and admits it, members determine its voluntariness and reliability as a matter of fact).

1999

United States v. Griffin, 50 MJ 278 (in the face of an appropriate motion or objection, the prosecution bears the burden of establishing the admissibility of a confession, and the military judge must find by a preponderance of the evidence that the statement was voluntarily made, considering the totality of the circumstances, including both the characteristics of the accused and the details of the interrogation).

United States v. Ford, 51 MJ 445 (the prosecution has the burden of establishing the admissibility of a confession, establishing by a preponderance of the evidence that the confession was voluntary).

(in spite of unwarned earlier questioning, a confession given later was voluntary where:  (1) statements made during initial unwarned interview were not the product of actual coercion; (2) proper warnings preceded second interview; (3) other then the inherent coercive atmosphere of a station house, appellant was not deprived of personal comforts during second interrogation; (4) although no cleansing warning was given, appellant appeared to understand his rights; and, (5) there was no reference to earlier unwarned statements).

United States v. Henderson, 52 MJ 14(where appellant couched his admissions in an exculpatory story of self-defense to military authorities in hopes of avoiding problems with the German government, there was no indication that appellant’s will was overborne and his inculpatory admissions were involuntary).
 

Warnings:

2008 (September Term)

United States v. Chatfield, 67 M.J. 432 (the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the accused unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination; the safeguards must take the form of specific warnings – prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed). 

 

(custodial interrogation is defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way; to answer the question whether an accused is in custody for purposes of Miranda, all of the circumstances surrounding the interrogation are considered to determine how a reasonable person in the position of the accused would gauge the breadth of his or her freedom of action; two inquiries are essential to a custody determination:  first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave; the facts are considered objectively in the context of a reasonable person’s perception when situated in the accused’s position). 

 

(to be considered in custody for purposes of Miranda, a reasonable person in appellant’s position must have believed he was restrained in a formal arrest or that his freedom of movement was restrained to a degree associated with a formal arrest; as an initial matter, there is no per se rule that whenever a suspect appears at a police station for questioning, the suspect is therefore in custody; several factors are looked at when determining whether a person has been restrained, including:  (1) whether the person appeared for questioning voluntarily; (2) the location and atmosphere of the place in which questioning occurred; (3) the length of the questioning; (4) the number of law enforcement officers present at the scene; and (5) the degree of physical restraint placed upon the suspect). 

 

(appellant was not in custody such that Miranda warnings were required when several military officers accompanied him to a civilian police station and when he gave a statement to a civilian police officer at that station, where under the circumstances, appellant appeared for questioning voluntarily and where a reasonable person in appellant’s situation at the police station would have realized that he was free to leave and would not have believed he was subject to a formal arrest or restraint; in this case, the military officers did not order appellant to go to the police station or to answer questions; and at the time of the interview with the civilian police officer, there were no other police officers at the station, plans had been made between the military officers and the police officer for returning appellant to the officers for dinner, the interview occurred in an office rather than in an interrogation room, the interview was short, the interview was conducted with the office door open, appellant was neither handcuffed nor told he could not leave; and appellant admitted that the police officer was not accusatory). 

United States v. Delarosa, 67 M.J. 318 (prior to initiating interrogation, law enforcement officials must provide rights warnings to a person in custody). 

 

(when Miranda warnings are required, the person must be advised of the right to remain silent, that any statement made by the person can be used against that person in a court of law, that the person has the right to consult with counsel and have counsel present during questioning, and that counsel will be appointed if the person cannot afford a lawyer).

United States v. Simpson, 54 MJ 281 (the government has the burden of establishing compliance with rights warning requirements by a preponderance of the evidence).

(whether that portion of the rights warning requiring that the suspect be informed of “the nature of the accusation” was inconsistent with applicable rights warning requirements is reviewed de novo).

(in fulfilling the obligation of inform a suspect about the nature of the accusation, it is not necessary that an accused or suspect be advised of each and every possible charge under investigation, nor that the advice include the most serious or any lesser-included offenses being investigated; nevertheless, the accused or suspect must be informed of the general nature of the allegation, to include the area of suspicion that focuses the person toward the circumstances surrounding the event).

(among the factors to consider in determining whether a suspect has been satisfactorily informed about the nature of the accusation are:  whether the conduct is part of a continuous sequence of events; whether the conduct was within the frame of reference supplied by the warnings; or whether the interrogator had previous knowledge of the unwarned offenses).

(advising suspect that he was being questioned about indecent acts or liberties with a named individual sufficiently oriented appellant to the nature of the accusations against him where the indecent acts and sodomy were sufficiently related so that the warning oriented appellant toward the nature of the accusations against him).

United States v. Norris, 55 MJ 209 (Article 31(b) applies only to situations in which, because of military rank, duty, or other similar relationship, there might be subtle pressure on a suspect to respond to an inquiry, and two prerequisites must be met before Article 31(b) will apply:  (1) a questioner subject to the Code was acting in an official capacity in his inquiry as opposed to only having a personal motivation; and (2) the person questioned must perceive that the inquiry involved was more than a casual conversation).

(in reviewing a military judge’s ruling on a motion to suppress under Article 31(b), Court applies a clearly-erroneous standard of review to findings of fact and a de novo standard to conclusions of law).

(questioner was acting in a personal rather than an official capacity in conversation with accused, and Article 31(b) did not apply, where:  (1) the questioner’s purpose was to understand and clarify the content of a letter written by his daughter to a man who had become a friend; (2) questioner did not seek out the accused with a view towards elevating the matter to a criminal investigation and prosecution; (3) at the time of the conversation, questioner considered the situation to be a family matter; and (4) the findings of fact, supported by the evidence, indicate that the conversation was between friends).

United States v. Catrett, 55 MJ 400 (whether a suspect is in custody for purposes of Miranda warnings is a de novo question of law to be decided on the basis of the facts found by the factfinder).

(appellant was in custody for purposes of Miranda warnings where:  (1) the police told appellant he was not free to leave the living room unless a police officer accompanied him; (2) there was always an officer present to control appellant’s movements; (3) an officer testified that appellant was under detention, not free to leave, and would have been stopped if he attempted to do so; and (4) appellant never left the living room until he was taken to the police station).

(a “public safety” exception to Miranda warnings requirement applied where:  (1) civilian police were responding to a domestic-assault complaint in which a gun was reportedly involved; (2) an empty holster was found during a search of appellant’s apartment before the challenged questioning; and (3) the questions asked by the police, although phrased in terms of the cause of the reported assault, were found by the judge to be legitimate attempts by police to locate the still-missing gun).

(U.S. Court of Appeals for the Armed Forces rejects argument that exceptions to the constitutionally based Miranda rule may not be carved out by the Supreme Court, citing Dickerson v. United States, 530 U.S. 428, 441 (2000)).

(assuming a Miranda violation, admitting appellant’s statement to civilian police that he hit the victim with a dog bone and a statue was harmless beyond a reasonable doubt where the victim testified to the same assault, eyewitness statements from appellant’s wife to the same effect were admitted, and the bloodied dog bone was discovered in plain view before appellant made the challenged incriminating admissions).


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