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

App. 22, M.R.E. 304(d)(3) APPENDIX 22
requirements of Para. 115, MCM, 1969 (Rev.), in order to demonstrate
“due diligence” under the Rule. Nor shall the defense be
required to present evidence to raise a matter under the Rule. The
defense shall present its motion by offer of proof, but it may be
required to present evidence in support of the motion should the
prosecution first present evidence in opposition to the motion.
If a general objection to the prosecution evidence is not authorized,
the defense may be required by Rule 304(d)(3) to make
specific objection to prosecution evidence. It is not the intent of
t h e C o m m i t t e e t o r e q u i r e e x t r e m e l y t e c h n i c a l p l e a d i n g , b u t
enough specificity to reasonably narrow the issue is desirable.
Examples of defense objections include but are not limited to one
or more of the following non-exclusive examples:
That the accused was a suspect but not given Article 31(b) or
Rule 305(c) warnings prior to interrogation.
That although 31(b) or Rule 305(c) warnings were given,
c o u n s e l w a r n i n g s u n d e r R u l e 3 0 5 ( d ) w e r e n e c e s s a r y a n d n o t
given (or given improperly). (Rule 305(d); United States v. Tempia,
16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967).)
That despite the accused’s express refusal to make a statement,
s h e w a s q u e s t i o n e d a n d m a d e a n a d m i s s i o n . ( s e e e . g . , R u l e
305(f); Michigan v. Mosely, 423 U.S. 96 (1975); United States v.
Westmore, 17 U.S.C.M.A. 406, 38 C.M.R. 204 (1968).)
That the accused requested counsel but was interrogated by
the military police without having seen counsel. (see e.g., Rule
305(a) and (d); United States v. Gaines, 21 U.S.C.M.A. 236, 45
C.M.R. 10 (1972).)
That the accused was induced to make a statement by a
promise of leniency by his squadron commander. (see e.g., Rule
304(b)(3), Manual for Courts-Martial, United States, 1969 (Rev.
ed.), Para 140a(2); People v. Pineda, 182 Colo. 388, 513 P.2d
452 (1973).)
That an accused was threatened with prosecution of her
h u s b a n d i f s h e f a i l e d t o m a k e a s t a t e m e n t . ( s e e e . g . , R u l e
304(b)(3), Jarriel v. State, 317 So. 2d 141 (Fla. App. 1975).)
That the accused was held incommunicado and beaten until
she confessed. ( see e.g., Rule 304(b)(3); Payne v. Arkansas, 356
U.S. 560 (1958).)
That the accused made the statement in question only because
he had previously given a statement to his division officer
which was involuntary because he was improperly warned. ( see
e.g., Rule 304(b)(3); United States v. Seay, 1 M.J. 201 (C.M.A.
1978).)
Although the prosecution retains at all times the burden of
proof in this area, a specific defense objection under this Rule
must include enough facts to enable the military judge to determine
whether the objection is appropriate. These facts will be
brought before the court via recital by counsel; the defense will
not be required to offer evidence in order to raise the issue. If the
prosecution concurs with the defense recital, the facts involved
will be taken as true for purposes of the motion and evidence
need not be presented. If the prosecution does not concur and the
defense facts would justify relief if taken as true, the prosecution
will present its evidence and the defense will then present its
evidence. The general intent of this provision is to narrow the
litigation as much as may be possible without affecting the prosecution’s
burden.
In view of the Committee’s intent to narrow litigation in this
area, it has adopted a basic structure in which the defense, when
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required by the military judge to object with specificity, has total
responsibility in terms of what objection, if any, to raise under
this Rule.
(4) Rulings. Rule 304(d)(4) is taken without significant change
from Federal Rule of Criminal Procedure 12(e). As a plea of
guilty waives all self-incrimination or voluntariness objections,
Rule 304(d)(5), it is contemplated that litigation of confession
issues raised before the plea will be fully concluded prior to plea.
Cases involving trials by military judge alone in which the accused
will enter a plea of not guilty are likely to be the only ones
in which deferral of ruling is even theoretically possible. If the
prosecution does not intend to use against the accused a statement
challenged by the accused under this Rule but is unwilling to
abandon any potential use of such statement, two options exist.
First, the matter can be litigated before plea, or second, if the
accused clearly intends to plead not guilty regardless of the military
judge’s ruling as to the admissibility of the statements in
question, the matter may be deferred until such time as the prosecution
indicates a desire to use the statements.
(5) Effect of guilty plea. Rule 304(d)(5) restates prior law; see,
e.g., United States v. Dusenberry, 23 U.S.C.M.A. 287, 49 C.M.R.
536 (1975).
(e) Burden of proof. Rule 304(e) substantially changes military
law. Under the prior system, the armed forces did not follow the
rule applied in the civilian federal courts. Instead, MCM, 1969
( R e v . ) u t i l i z e d t h e m i n o r i t y “ M a s s a c h u s e t t s R u l e , ” s o m e t i m e s
known as the “Two Bite Rule.” Under this procedure the defense
first raises a confession or admission issue before the military
judge who determines it on a preponderance basis: if the judge
determines the issue adversely to the accused, the defense may
raise the issue again before the members. In such a case, the
members must be instructed not to consider the evidence in question
unless they find it to have been voluntary beyond a reasonable
doubt. The Committee determined that this bifurcated system
unnecessarily complicated the final instructions to the members to
such an extent as to substantially confuse the important matters
before them. In view of the preference expressed in Article 36 for
the procedure used in the trial of criminal cases in the United
States district courts, the Committee adopted the majority “Orthodox
Rule” as used in Article III courts. Pursuant to this proced
u r e , t h e m i l i t a r y j u d g e d e t e r m i n e s t h e a d m i s s i b i l i t y o f
confessions or admissions using a preponderance basis. No recourse
exists to the court members on the question of admissibilit
y . I n t h e e v e n t o f a r u l i n g o n a d m i s s i b i l i t y a d v e r s e t o t h e
accused, the accused may present evidence to the members as to
voluntariness for their consideration in determining what weight
to give to the statements in question.
It should be noted that under the Rules the prosecution’s burden
extends only to the specific issue raised by the defense under
Rule 304(d), should specificity have been required pursuant to
Rule 304(d)(3).
(1) In general. Rule 304(e)(1) requires that the military judge
find by a preponderance that a statement challenged under this
rule was made voluntarily. When a trial is before a special courtmartial
without a military judge, the ruling of the President of the
court is subject to objection by any member. The President’s
decision may be overruled. The Committee authorized use of this
procedure in view of the importance of the issue and the absence
of a legally trained presiding officer.