1. bestmilitarydefensedefenseattorneys10.01.26PMcopyMil. R. Evid. 304(c)(3) defines inadmissible involuntary statements as those obtained in violation of the self-incrimination privilege or due process clause of the Fifth Amendment or Article 31 or though use of coercion, unlawful influence, or unlawful inducement. The drafters’ analysis for this provision states: The language governing statements obtained through the use of “coercion, unlawful influence, and unlawful inducement,” found in Article 31(d) makes it clear that a statement obtained by any person, regardless of status, that is the product of such conduct is involuntary. Although it is unlikely that a private citizen may run afoul of the prohibition of unlawful influence or inducement, such a person clearly may coerce a statement and such coercion will yield an involuntary statement.26
  2. United States v. Ellis , 57 M.J. 375 (C.A.A.F. 2002). The appellant was subjected to several hours of interrogation during which he was accused of killing his two- year-old child. During the interrogation, the appellant was told that there was enough evidence to arrest him and his wife (who was also being subjected to interrogation). He was also told that his children would be taken away and put in foster care if he and his wife were arrested. The appellant and his wife met for fifteen minutes; after the meeting the appellant confessed to slamming his son’s head on the ground on two different occasions. The court concluded that although the detective’s statement regarding the possible removal of appellant’s children may have contributed to his confession, the statement was still the product of an essentially free and unconstrained choice by the appellant, and thus was voluntary. See also United States v. Bresnahan , 62 M.J. 137 (C.A.A.F. 2005). 26 Although written well before Connelly , the drafters’ analysis is probably still a correct interpretation of the law. From the perspective of a due process analysis, statements are excluded as the result of governmental misconduct. The Supreme Court observed in Connelly , however, that even if a confession is constitutionally voluntary, due to the absence of government misconduct, it might still be proved unreliable as a matter of law. In this regard, the admissibility of a statement is governed by the evidentiary laws of the forum, and not by the Due Process Clause. As implemented by Mil. R. Evid. 304, the statutory protection of servicemembers under Article 31 clearly contemplates not only an analysis of due process voluntariness, but also consideration of voluntariness as a matter of fundamental reliability. Accordingly, statements coerced by private citizens may still be held inadmissible under Mil. R. Evid. 304.
  3. Arizona v. Fulminante , 499 U.S. 279 (1991). The accused was befriended by another inmate, an FBI informant, who promised to protect the accused from other inmates if he would tell what happened concerning the murder of the accused’s 11-year-old daughter. Under “totality of the circumstances” the subsequent confession was involuntary. The Court found that a credible threat of physical violence existed unless the accused confessed. “Coercion can be mental as well as physical, and . . . the blood of the accused is not the only hallmark of an unconstitutional inquisition.” Other factors that may have been relevant in determining whether the accused’s will has been overborne include: accused’s intelligence, physical stature, prior prison experiences, and relationship with the informant.
  4. United States v. Martinez , 38 M.J. 82 (C.M.A. 1993). Confession during polygraph examination could be found involuntary as result of psychological coercion, even though accused had waived his rights and was free to leave motel room. Accused testified that his will was overborne. Coercive factors considered included duration of interrogation, the nature of the interrogation techniques, and the accused’s frustrated attempts to obtain assistance of counsel during the investigation.
  5. United States v. Benner , 57 M.J. 210 (C.A.A.F. 2002). Appellant’s confession to CID was involuntary, since the appellant was faced with the “Hobson’s choice” of either confessing on his own, or having the chaplain inform CID of his earlier admissions to child sexual abuse while seeking counseling from the chaplain.
  6. Haynes v. Washington , 373 U.S. 503 (1963). Petitioner’s written confession violated due process because it was obtained through the use of threats and isolation techniques by police. Failure to inform petitioner of his rights was another relevant factor in determining whether the confession was voluntary. The court further observed that the refusal to allow petitioner to communicate with his attorney or his wife was a misdemeanor under state law.
  7. United States v. O’Such , 37 C.M.R. 157 (C.M.A. 1967). The fact that appellant was deprived of sleep, had threats made against his family during the interrogation, and was threatened with being charged with misprision of a felony if he continued to remain silent led to his coerced oral admissions.
  8. Ashcraft v. Tennessee , 322 U.S. 143 (1944). A thirty-six hour interrogation was determined to be so “inherently coercive” as to render a resulting confession automatically involuntary. The Court seems to further indicate that the longer the interrogation, the less important the other factors become when evaluating the totality of the circumstances.


United States v. Benner