Military Justice 101 - Part V
Self-Incrimination Protections
(Page 5)
Factors affecting voluntariness. The factors discussed below may affect the admissibility of a confession or admission. For instance, it is possible to completely advise a person of his or her rights, yet secure a confession or admission that is completely involuntary because of something that was said or done.
Threats or promises. To invalidate an otherwise valid confession or admission, it is not necessary to make an overt threat or promise. For example, after being advised fully of his rights, the suspect is told that it will "go hard on him" unless he tells all. This clearly amounts to an unlawful threat.
Physical force. Obviously, physical force will invalidate a confession or admission. Consider this situation. A steals B's radio. C, a friend of B's, learns of B's missing radio and suspects A. C beats and kicks A until A admits the theft and the location of the radio. C then notifies the investigator, X, of the theft. X has no knowledge of A's having been beaten by C. X proceeds to advise A of his rights and obtains a confession from A. Is the confession made by A to X voluntary? This situation raises a serious possibility that the confession is not voluntary if A were in fact influenced by the previous beating received at the hands of C, even though X knew nothing about this. Therefore, cleansing warnings to remove this actual taint would be required.
Prolonged confinement or interrogation. Duress or coercion can be mental as well as physical. By denying a suspect the necessities of life (such as food, water, air, light, restroom facilities, etc.), or merely by interrogating a person for extremely long periods of time without sleep, a confession or admission may be rendered involuntary.
The Court of Appeals for the Armed Forces has recently taken a look at several cases dealing with an accused's request for counsel. The court has held that the accused must "unequivocally " request counsel. Ambiguous requests will not suffice. However, the court also recommends that when faced with such an ambiguous request, the wise interrogator will further explore the accused's desires for counsel.
Exclusionary rule. Any statement obtained in violation of any applicable warning requirement under Article 31, Miranda / Tempia, or Mil.R.Evid. 305 is inadmissible against the accused at a court-martial. Any statement that is considered to have been involuntary is likewise inadmissible at a court-martial.
Fruit of the poisonous tree. The "primary taint" is the initial violation of the accused's right. Any other evidence derived from this initial tainted confession is labeled "fruit of the poisonous tree." The question to be determined is whether the evidence has been obtained by the exploitation of a violation of the accused's rights or has been obtained by "means sufficiently distinguishable to be purged of the primary taint."
Thus, if Private Jones is found with marijuana in her pocket and interrogated without being advised of her Article 31(b) rights and confesses to the possession of 1,000 pounds of marijuana in her parked vehicle located on base, the 1,000 pounds of marijuana-as well as Private Jones' confession-will be excluded from evidence. The reason: The 1,000 pounds of marijuana were discovered by exploiting the unlawfully obtained confession.
The converse of this situation also demonstrates the same principle. As the result of an illegal search, marijuana is found in Private Jones' locker. Private Jones confesses because she was told that "they had the goods on her" and was confronted with the marijuana that was found in her locker. This confession is not admissible because it was obtained by exploiting the unlawfully obtained evidence.
Standing to raise fifth amendment / Article 31 issues at trial. The general rule is that fifth amendment / Article 31 rights are personal ones and that only the accused at trial may raise a self-incrimination or confession issue. Thus, even if a co-accused makes an unwarned statement that the prosecution intends to use against the accused, the accused lacks standing to raise the issue of the accomplice's lack of warnings. One exception seems to exist, however. Where the statement to be offered is claimed to be involuntary in the traditional sense (e.g., coerced), a hearing may be held to determine the voluntariness of the statement.
The government's burden at trial. The prosecution must prove that the accused was advised of his or her rights, understood them, and voluntarily waived them. The fact that an accused had previously attended classes on Article 31, or had received UCMJ indoctrination during recruit training, will not meet this burden. Trial judges will not presume that an accused understands his or her rights, regardless of prior experience. Furthermore, general classes on Article 31 would not include specific advice as to the suspected offense, as required by Article 31(b).
While it is true that no particular form must be used to properly advise the accused, deviating from a sufficient statement of rights (such as on the standard military "rights" card) could cause the interrogator to give an incomplete or incorrect warning.
Several examples will serve to illustrate the point. In a number of cases, the following "right to counsel" was explained to the accused.
a. "You have a right to consult with legal counsel, if desired."
b. "You have a right to consult with legal counsel at any time you desire."
c. "You are entitled to legal assistance from the staff judge advocate officer or representation by a civilian lawyer at your own expense."
d. "You can consult with counsel and have counsel present at the time of the interview."
Each of these warnings was held to be insufficient to convey to the suspect or accused his or her rights to counsel. In order to be legal, the Article 31 rights must be complete.
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Information derived from Handbook of Military Justice & Civil Law, Courtesy of the United States Navy
