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Officer Cop, of the threat. Petty Officer Cop has no
knowledge of SN Thief having been beaten by SN Pal.
Petty Officer Cop proceeds to advise SN Thief of his
rights and obtains a confession from SN Thief. Is the
confession made by SN Thief to Petty Officer Cop
voluntary? This situation raises a serious possibility that
the confession is not voluntary if SN Thief were in fact
influenced by the previous beating received at the hands
of SN Pal, even though Petty Officer Cop 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, or merely by
interrogating a person for an extremely long period of
time without sleep, a confession or admission may be
rendered involuntary. What is an extremely long period
of time? To answer this, the circumstances in each case
as well as the condition of the suspect or accused must
be considered. As a practical matter, judgment and
common sense should provide the answer in each case.
CONSEQUENCES OF VIOLATING THE
RIGHTS AGAINST SELF-INCRIMINATION
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.
The primary taint is the initial violation of the
accused’s right. The evidence that is the product of the
exploitation of this taint 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 adequately distinguishable to be purged of the
primary taint.
Thus, if Seaman Pot is found with marijuana in her
pocket, is interrogated without being advised of her
Article 31(b) rights, and confesses to the possession of
100 pounds of marijuana in her parked vehicle located
on base, the 100 pounds of marijuana as well as Seaman
Pot’s confession will be excluded from evidence. The
reason—the 100 pounds of marijuana was discovered
by exploiting the unlawfully obtained evidence.
The opposite of this situation also represents the
same principle.
As the result of an illegal search,
marijuana is found in Seaman Stupid’s locker. Seaman
Stupid confesses because he was told that they had the
goods on him and was confronted with the marijuana
that was found in his locker. This confession is not
admissible because it was obtained by exploiting the
unlawfully obtained evidence.
When a command is concerned about what
procedures to follow, or whether or not a confession or
admission can be allowed into evidence, a lawyer should
be consulted.
Unlike practical engineering, basic
electronics, or elementary mathematics, many legal
questions do not have definite answers. On the basis of
his or her training, however, a lawyer’s professional
opinion should provide the best available answers to
difficult questions that arise daily.
HOW TO GIVE THE WARNINGS
The foregoing discussions of Fifth and Sixth
Amendment rights have indicated that suspects have
rights that do not run to mere witnesses. Guidelines
have been given for helping you determine when a
witness shifts to the suspect category. The concept of in
custody has been explained. Now that you know how
to fit the person who is being interrogated into the
various categories, you are probably interested in a
formula that assures the admission of any evidence
produced by an interrogation.
Warning the Witness
Under Article 31, a witness enjoys two significant
rights. He or she may not be compelled to incriminate
himself or herself.
Neither may the witness be
compelled to make a statement nor produce evidence
before a military tribunal if the evidence is not material
to the issue and tends to degrade him or her. Even
though each witness should be advised of these rights,
they are likely to become significant to you, the LN,
when the witness shifts to the suspect category.
Warning the Suspect
All suspects and accused persons are entitled to
warnings flowing from rights guaranteed by both the
Fifth and Sixth Amendments. A proper warning to one
accused or suspected of an offense is as follows:
1. You are suspected of committing the following
offenses(s): (Here describe the offense[s])
2. You have the right to remain silent.
3. Any statement you do make may be used as
evidence against you in trial by court-martial.
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