The general rule: Mil. R. Evid. 304(a)


bestmilitarydefensedefenseattorneys10.03.35PM27 Mil. R. Evid. 304(b)(1): “Where the statement is involuntary only in terms of noncompliance with the requirements of Mil. R. Evid. 305(c) or (f), or the requirements concerning counsel under Mil. R. Evid. 305(d), 305(e), or 305(g), this rule does not prohibit use of the statement to impeach by contradiction the in-court testimony of the accused . . . .” 28 Harris v. New York , 401 U.S. 222 (1971); accord Oregon v. Hass , 420 U.S. 714 (1975). 29 Kansas v. Ventris , 556 U.S. 586 (2009) (statement to informant, admittedly elicited in violation of the Sixth Amendment, was admissible to impeach defendant’s inconsistent testimony at trial); Michigan v. Harvey , 494 U.S. 344 (1990) (statement given in response to police-initiated interrogation following attachment of accused’s Sixth Amendment right to counsel, although not admissible in the prosecution’s case-in-chief, may be used to impeach the defendant’s testimony, at least when the defendant gives a knowing and voluntary waiver of his right to counsel); United States v. Langer , 41 M.J. 780 (A.F. Ct. Crim. App. 1995) (statements made by accused after preferral of drug charges against him to person recruited as drug informant by government agents were obtained in violation of accused’s Sixth Amendment right to counsel and could not be used in government’s case-on-chief. Although informant may have been intended to act as a passive listening post, person in fact initiated contact and conversations with accused for the express purpose of gathering information about illegal drug activity. Statements could be used in rebuttal if such information became relevant to impeach accused’s testimony). “[A]n involuntary statement or any derivative evidence therefrom may not be received in evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection to the evidence under this rule.”

Mil. R. Evid. 304(a)

testimony at trial