2008 edition - Fort Sam Houston - U.S. Army

found in Para. 140 a(2), MCM, 1969 (Rev.). The examples in
Para. 140 a(2) are set forth in this paragraph. A statement obtained
in violation of the warning and waiver requirements of
Rule 305 is “involuntary.” Rule 305(a).
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.
A statement made by the accused during a mental examination
ordered under Para. 121, MCM, 1969 (Rev.) (now R.C.M. 706,
MCM, 1984) is treated as an involuntary statement under Rule
304. See Rule 302(a). The basis for this rule is that Para. 121 and
Rule 302 compel the accused to participate in the Government
examination or face a judicial order prohibiting the accused from
presenting any expert testimony on the issue of mental responsibility.
Insofar as Rule 304(c)(3) is concerned, some examples which
may by themselves or in conjunction with others constitute coercion,
unlawful influence, or unlawful inducement in obtaining a
confession or admission are:
Infliction of bodily harm including questioning accompanied by
deprivation of the necessities of life such as food, sleep, or adequate
clothing;
Threats of bodily harm;
Imposition of confinement or deprivation of privileges or necessities
because a statement was not made by the accused, or
threats thereof if a statement is not made;
Promises of immunity or clemency as to any offense allegedly
committed by the accused;
Promises of reward or benefit, or threats of disadvantage likely
to induce the accused to make the confession or admission.
There is no change in the principle, set forth in the fifth
paragraph of Para. 140 a(2), MCM, 1969 (Rev.), that a statement
obtained “in an interrogation conducted in accordance with all
applicable rules is not involuntary because the interrogation was
preceded by one that was not so conducted, if it clearly appears
that all improper influences of the preceding interrogations had
ceased to operate on the mind of the accused or suspect at the
time that he or she made the statement.” In such a case, the effect
of the involuntary statement is sufficiently attenuated to permit a
determination that the latter statement was not “ obtained in
violation of” the rights and privileges found in Rule 304(c)(3) and
305(a) (emphasis added).
(d) Procedure. Rule 304(d) makes a significant change in prior
procedure. Under Para. 140 a(2), MCM, 1969 (Rev.), the prosecution
was required to prove a statement to be voluntary before it
could be admitted in evidence absent explicit defense waiver.
Rule 304(d) is intended to reduce the number of unnecessary
objections to evidence on voluntariness grounds and to narrow
what litigation remains by requiring the defense to move to suppress
or to object to evidence covered by this Rule. Failure to so
move or object constitutes a waiver of the motion or objection.
This follows civilian procedure in which the accused is provided
an opportunity to assert privilege against self-incrimination and
ANALYSIS OF THE MILITARY RULES OF EVIDENCE
App. 22, M.R.E. 304(d)(3)
related rights but may waive any objection to evidence obtained
in violation of the privilege through failure to object.
( 1 ) D i s c l o s u r e . P r i o r p r o c e d u r e ( P a r a . 1 2 1 , M C M , 1 9 6 9
(Rev.)) is changed to assist the defense in formulating its challenges.
The prosecution is required to disclose prior to arraignment
all statements by the accused known to the prosecution
which are relevant to the case (including matters likely to be
relevant in rebuttal and sentencing) and within military control.
Disclosure should be made in writing in order to prove compliance
with the Rule and to prevent misunderstandings. As a general
matter, the trial counsel is not authorized to obtain statements
made by the accused at a sanity board, with limited exceptions. If
the trial counsel has knowledge of such statements, they must be
disclosed. Regardless of trial counsel’s knowledge, the defense is
entitled to receive the full report of the sanity board.
(2) Motions and objections. The defense is required under Rule
304(d)(2) to challenge evidence disclosed prior to arraignment
under Rule 304(d)(1) prior to submission of plea. In the absence
of a motion or objection prior to plea, the defense may not raise
the issue at a later time except as permitted by the military judge
for good cause shown. Failure to challenge disclosed evidence
waives the objection. This is a change from prior law under
which objection traditionally has been made after plea but may be
made, at the discretion of the military judge, prior to plea. This
change brings military law into line with civilian federal procedure
and resolves what is presently a variable and uncertain
procedure.
Litigation of a defense motion to suppress or an objection to a
statement made by the accused or to any derivative evidence
should take place at a hearing held outside the presence of the
court members. See, e.g., Rule 104(c).
(3) Specificity. Rule 304(d)(3) permits the military judge to
require the defense to specify the grounds for an objection under
Rule 304, but if the defense has not had adequate opportunity to
interview those persons present at the taking of a statement, the
military judge may issue an appropriate order including granting a
continuance for purposes of interview or permitting a general
objection. In view of the waiver that results in the event of failure
to object, defense counsel must have sufficient information in
order to decide whether to object to the admissibility of a statement
by the accused. Although telephone or other long distance
communications may be sufficient to allow a counsel to make an
informed decision, counsel may consider a personal interview to
be essential in this area and in such a case counsel is entitled to
personally interview the witnesses to the taking of a statement
before specificity can be required. When such an interview is
desired but despite due diligence counsel has been unable to
interview adequately those persons included in the taking of a
statement, the military judge has authority to resolve the situation.
Normally this would include the granting of a continuance for
interviews, or other appropriate relief. If an adequate opportunity
to interview is absent, even if this results solely from the witness’
unwillingness to speak to the defense, then the specificity requirement
does not apply. Lacking adequate opportunity to interview,
the defense may be authorized to enter a general objection to the
evidence. If a general objection has been authorized, the prosecution
must present evidence to show affirmatively that the statement
was voluntary in the same manner as it would be required to
do under prior law. Defense counsel is not required to meet the
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