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The Test

bestmilitarydefensedefenseattorneys9.59.04PM“The principles for determining whether a pretrial statement was [involuntary] is essentially the same whether the challenge is based on the Constitution, Article 31(d), or Mil. R. Evid. 304.” United States v. Bubonics , 45 M.J. 93 (C.A.A.F. 1996).

  1. “The necessary inquiry 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 critically impaired, use of the confession would offend due process.”24
  2. In applying a totality of the circumstances test to determine if the government has shown by a preponderance of the evidence that the accused will was not overborne in the making of a confession, the court will consider: (1) the characteristics of the accused, (2) conditions of the interrogation, and (3) conduct of the law enforcement officials.25 Article 31(d) provides: No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial. The Analysis to Mil. R. Evid. 304(c)(2) lists examples of involuntary statements as those resulting from: coercion, unlawful influence, and unlawful inducement, to include infliction of bodily harm, deprivation of food, sleep, or adequate clothing; threats of bodily harm; confinement or deprivation of privileges because a statement was not made, or threats thereof; promises of immunity or clemency; promises of reward or benefit, or threats of disadvantage. 24 Bubonics , 45 M.J. at 95. In Bubonics , the court found that while “Mutt and Jeff” techniques and threat of civilian prosecution interrogation techniques do not amount to per se coercion, based on the facts of the case, the interrogators improperly coerced Bubonics’ statement. See also Ledbetter v. Edwards , 35 F.3d 1062 (6th Cir. 1994) (finding that the accused’s confession was voluntary, the court considered the following factors: 1) no physical punishment or threats had been used; 2) no deprivation of physical necessities, such as food and drink or bathroom privileges; 3) short interrogation (3 hours); 4) informed of his Miranda warnings three different times; 5) clear indication Ledbetter understood his rights and did not appear under the influence of drugs or alcohol or otherwise unable to comprehend those rights; 6) did not express a reluctance to talk; and, 7) no request for the presence of an attorney). 25 United States v. Vandewoestyne , 41 M.J. 587 (A.F. Ct. Crim. App. 1994) (totality of the circumstances established accused’s confession was knowing and voluntary, even though he was ultimately persuaded to confess because of fear that a failure to cooperate might lead to deportation of his wife if her complicity in offenses was ever known to the INS); see also United States v. Wheeler , 22 M.J. 76 (C.M.A. 1986); United States v. Norfleet , 36 M.J. 129 (C.M.A. 1992); United States v. Doucet , 43 M.J. 656 (N-M. Ct. Crim. App. 1995); United States v. Briggs , 39 M.J. 600 (A.C.M.R. 1994); United States v. Gill , 37 M.J. 501 (A.F.C.M.R. 1993).
  3. United States v. Freeman , 65 M.J. 451 (C.A.A.F. 2008). Despite AFOSI agent conduct that included a ten-hour interview, two polygraphs, lies about the existence of the suspect’s fingerprints at the crime scene and threats to turn the suspect over to civilian law enforcement if he did not confess, the subsequent confession was not involuntary under the totality of the circumstances.
  4. United States v. Lichtenhan , 40 M.J. 466 (C.M.A. 1994). While a cleansing warning is not a requirement for admissibility, an earlier unwarned statement coupled with the lack of a cleansing warning before a subsequent statement are all part of the “totality of the circumstances” in determining if the subsequent statement was made voluntarily.
  5. United States v. Griffin , 50 M.J. 278 (C.A.A.F. 1999). At trial, the prosecutor introduced a confession the accused made to Defense Investigative Service (DIS) agents during a security clearance update interview. The CAAF upheld the military judge’s decision to admit the confession. In doing so, the court stated that “the voluntariness of a confession is determined by examining the totality of the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.” The court also determined that the military judge’s decision to exclude defense expert testimony about false confessions was proper.
  6. Schneckloth v. Bustamonte , 412 U.S. 218 (1973). In determining whether a confession has been elicited by means that are unconstitutional, it is necessary to look at the totality of the circumstances concerning “whether the defendant’s will was overborne in a particular case.” Factors to consider in assessing the totality of the circumstances include the age, education, and intelligence of the accused; whether the accused has been informed of his constitutional rights; the length of the questioning; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food or sleep.
  7. United States v. Henderson , 52 M.J. 14 (C.A.A.F. 1999). In deciding that the confession was voluntary, the court gave significant weight to the fact that the accused couched his admissions in an exculpatory manner in the hopes of avoiding trouble.
  8. United States v. Ford , 51 M.J. 445 (C.A.A.F. 1999). Based on the totality of the circumstances, the CAAF held that the accused’s written confession was voluntary, and was not tainted by an earlier unwarned, yet not coerced, interrogation.

United States v. Griffin

the prosecutor