Litigating the issues

  1. bestmilitarydefensedefenseattorneys9.48.00PM General Procedure. 32 A good example of a curative instruction is contained in
    United States v. Mobley
    , 34 M.J. 527 (A.F.C.M.R. 1991). 33 When defense does not request it, there is no need to reiterate instruction during final instructions.
    See also United States v. Zaccheus
    , 31 M.J. 766 (A.C.M.R. 1990).
    Motions and objections. Defense must raise the motion prior to the plea or the motion is waived; good cause must be shown for an exception. Mil. R. Evid. 304(d)(2)(A).
    Specificity. Judge may require defense to specify the grounds. Mil. R. Evid. 304(d)(3)
    Evidence. The defense may present evidence to support its motion, including the testimony of the accused for the limited purpose of the motion. The accused may be cross-examined only on the matter to which he testified. Nothing said by the accused, either in direct or cross-examination, may be used against him for any purpose other than in a prosecution for perjury, false swearing, or false official statement. Mil. R. Evid. 304(f).
    Burden. Once a motion or objection is raised by the defense, the prosecution has the burden of proving that the statement was voluntary by a preponderance of the evidence. Mil. R. Evid. 304(e).
    If a statement is admitted into evidence, the defense shall be allowed to present evidence as to the voluntariness of the statement in an attempt to reduce the weight that the fact finder will give to it. Mil. R. Evid. 304(e)(2).
    Rulings. Shall be ruled on prior to plea, unless good cause. Judge shall state essential findings of fact.34
    Guilty plea waives all objections to the admission of the statements.
  2. Standing to challenge self-incrimination issues.
    United States v. Jones
    , 52 M.J. 60 (C.A.A.F. 1999). To perfect its case against the accused, the government negotiated with three “minor offenders” to testify against the accused. These witnesses did not have a formal grant of immunity. The unwritten agreement was that the government would not prosecute them if they accepted Article 15 punishment, paid restitution, and testified against the accused. On appeal, the accused argued that the government violated the witness’s self-incrimination rights, and therefore, their testimony should not have been admissible. The CAAF held that the accused did not have standing to challenge procedural violations of the self-incrimination rights of the witnesses, but may challenge statements that are involuntary due to “coercion and unlawful influence.” The court further determined that the even though the government’s actions “smelled bad” and resulted in
    de facto
    immunity, they did not constitute the requisite showing of prejudice.
  3. Warnings and waivers at trial.
    Mil. R. Evid. 301(b)(2): The military judge should advise a witness of the right to decline to make an answer if the witness appears likely to incriminate himself. 34 Although the timing of essential findings is not specified by the MCM, they “should be” entered contemporaneously with a ruling on a suppression motion.
    United States v. Doucet
    , 43 M.J. 656 (N-M. Ct. Crim. App. 1995).
    Right against self-incrimination is a “fundamental constitutionally- mandated procedural right that can be waived only by an accused on the record.” Waiver will not be presumed by a silent or inadequate record.35
  4. Burden of proof. Mil. R. Evid. 304(e): The burden of proof is on the prosecution by a preponderance of the evidence. It extends only to grounds raised.
  5. Defense evidence on motions. Mil. R. Evid. 304(f): Accused may testify for limited purpose.
  6. Corroboration.
    Mil. R. Evid. 304(g): “An admission or a confession . . . may be considered as evidence . . . only if independent evidence, either direct or circumstantial, has been introduced that corroborates the essential facts admitted sufficiently to justify an inference of their truth. . . .” “If the independent evidence raises an inference of the truth of some but not all of the essential facts admitted, then the confession or admission may be considered as evidence . . . only with respect to those essential facts . . . that are corroborated . . . .”
    Procedure. Corroborating evidence is usually introduced before the confession or admission is introduced, but the military judge may admit evidence subject to later corroboration.

    United States v. Rounds
    , 30 M.J. 76 (C.M.A. 1990). Independent evidence of each and every element of the confessed offense is not required as a matter of military law. Generally speaking, it must “establish the trustworthiness of the” confession. Confession was sufficiently corroborated without independent evidence of ingestion of drugs when independent evidence showed accused had access and opportunity to ingest drugs at time and place where he confessed to using drugs.36

    United States v. Duvall
    , 47 M.J 189 (C.A.A.F. 1997). A conviction cannot be based solely on a confession. Rather, some corroborative evidence must be introduced to the trier of fact pursuant to Mil. R. Evid. 304(g). 35
    United States v. Adams
    , 28 M.J. 576 (A.C.M.R. 1989) (judge’s failure to advise accused of his constitutional rights rendered guilty plea improvident). 36
    See also United States v. Lawrence
    , 43 M.J. 677 (A.F. Ct. Crim. App. 1995) (confession to cocaine use of four occasions sufficiently corroborated by recent urinalysis);
    United States v. Maio
    , 34 M.J. 215 (C.M.A. 1992);
    United States v. Williams
    , 36 M.J. 785 (A.C.M.R. 1993).

    United States v. Hall
    , 50 M.J. 247 (C.A.A.F. 1999). In a military judge alone trial, the trial counsel did not offer the same corroborating evidence on the merits that he did during proceedings on a defense motion to suppress the accused’s confession. In affirming its holding in
    (corroborating evidence must be submitted to the trier-of-fact), the CAAF found that the government satisfied Mil. R. Evid. 304(g) and the confession was sufficiently corroborated, since the judge acknowledged that he considered the corroborating evidence for both the motion and the merits.

    United States v. Swenson
    , 51 M.J. 522 (A.F. Ct. Crim. App. 1999). Members convicted the accused of attempting to use LSD. The conviction was based upon a confession that was corroborated by a previous admission of LSD use. The AFCCA held that corroborating the accused’s confession with a prior admission was proper so long as the prior admission was a statement of anticipated future conduct and not an admission of past criminal conduct. A statement of future criminal misconduct does not need to be corroborated; it can be used to corroborate a confession.

    United States v. Cottrill
    , 45 M.J. 485 (C.A.A.F. 1997). The corroborating evidence must raise only an inference of truth as to the essential facts admitted, which must be shown by a preponderance of the evidence. In
    , there was sufficient independent physical evidence to corroborate the accused’s pretrial admissions that he sexually assaulted his daughter.
    See also United States v. O’Rourke
    , 57 M.J. 636 (A. Ct. Crim. App. 2002)

    United States v. Howe
    , 37 M.J. 1062 (N.M.C.M.R. 1993),
    overruled on other grounds
    United States v. Driver
    , 57 M.J. 760 (N-M. Ct. Crim. App. 2002). Trial counsel has a duty to withdraw charge based on uncorroborated admission or else inform military judge there is insufficient evidence to support it.

    United States v. McCastle
    , 40 M.J. 763 (A.F.C.M.R. 1994),
    , 43 M.J. 438 (C.A.A.F. 1996),
    as modified on reconsideration
    , 44 M.J. 77 (C.A.A.F. 1996). Corroboration was enough where the place the accused admitted to purchasing drugs was a well-known trafficking location, accused’s description of the dealer matched the description of a known dealer at that location, and the dealer was frequently observed by authorities using the described vehicle to conduct drug sales.

    United States v. Baldwin
    , 54 M.J. 464 (C.A.A.F. 2001). In the confession, the appellant stated that his wife had walked in on him while he was assaulting his daughter (although she did not see anything) and that he immediately sought professional help through the chaplain and a therapist. In finding adequate corroboration, the court relied on the following facts: the appellant’s wife saw the appellant in their daughter’s room on the night he confessed to sexually assaulting her; the appellant gave his wife “a strange look that she had never seen before;” the appellant left the bedroom and went in the living room where he began crying and talking about his own history of being sexually abused; and, two days after being caught, the appellant went to the chaplain and then to a therapist. It was not necessary to provide independent evidence of all the elements of the offense. The court also emphasized that the government only had to establish an inference of truth as to the essential facts by a preponderance of the evidence.
  7. Defense Evidence on Voluntariness.

    Crane v. Kentucky
    , 476 U.S. 683 (1986). Due process and Sixth Amendment concerns require that the accused be permitted to challenge the reliability of a statement before the fact-finder, even though the judge may have found the statement “voluntary.”

    United States v. Miller
    , 31 M.J. 247 (C.M.A. 1990). Mil. R. Evid. 304(e) adopts the orthodox rule for determining the voluntariness of confessions. The judge alone determines the admissibility of confessions and that ruling is final. Although the members must consider the confession in determining guilt or innocence, the accused is free to argue the confession was involuntary in order to reduce the weight the members give it. Judge must hold a hearing and make findings as to voluntariness only if the defense raises the issue by a motion to suppress or a timely objection at trial. The Constitution does not require a voluntariness hearing unless use of the confession is challenged.
  8. Joint trials: redaction of confessions.
    Gray v. Maryland
    , 523 U.S. 185 (1998). A co-defendant’s confession that substituted either a blank space or the word “deleted” in place of the accused’s name was inadmissible in a joint trial. As redacted, the Court held that the jury would clearly infer the confession refers to the accused. The Court opined that there were other acceptable ways to redact the accused’s name from the confession.
    See also Bruton v. United States
    , 391 U.S. 123 (1968); Mil. R. Evid. 306.

redaction of confessions

Crane v. Kentucky