U.S. v. Ford, 51 M.J. 445

First Principles: Constitutional Matters: Confessions

1. the prosecution has the burden of establishing the admissibility of a confession, establishing by a preponderance of the evidence that the confession was voluntary
2. in spite of unwarned earlier questioning, a confession given later was voluntary where: (1) statements made during initial unwarned interview were not the product of actual coercion; (2) proper warnings preceded second interview; (3) other then the inherent coercive atmosphere of a station house, appellant was not deprived of personal comforts during second interrogation; (4) although no cleansing warning was given, appellant appeared to understand his rights; and, (5) there was no reference to earlier unwarned statements
3. a confession challenged as derivative evidence may be admitted if the military judge finds by a preponderance of the evidence that the derivative confession was voluntary, that it was not obtained by the use of the inadmissible evidence, or that the confession would have been obtained even if the inadmissible statement had not been made
4. where a confession is obtained by actual coercion, a subsequently obtained confession is presumptively tainted, quoting United States v. Phillips, 32 MJ 76, 79 (1991)
5. where a confession is involuntary only because the suspect has not been warned of his panoply of rights to silence and counsel, the voluntariness of a second confession is determined by the totality of the circumstances to determine whether the confession is the product of an essentially free and unconstrained choice, including consideration of the following: (1) the earlier unwarned statement is a factor in the totality of the circumstances, but it does not presumptively taint the subsequent confession; (2) the characteristics of the accused and the details of the interrogation; (3) subsequent administration of warnings should suffice to remove conditions that precluded admission of the earlier statement; and, (4) the presence or absence of a cleansing warning
6. interrogation must cease if the suspect requests counsel, but an ambiguous request for counsel does not require that interrogation cease; a request is ambiguous if it is not sufficiently clear so that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney
7. appellant’s invocation of the right to counsel was ambiguous and conditional where appellant told the investigator that appellant would not talk if the investigator persisted in calling appellant a liar, but that he would talk if the investigator would acknowledge that it was the investigator who was mistaken and stop calling appellant a liar

Military Justice Personnel: Defense Function: Experts, Investigators -- Appointment to Defense Team

1. defense is authorized the employment of experts at government expense where the testimony would be “relevant and necessary,” if the government cannot or will not provide an adequate substitute; the test for necessity has three prongs: (1) why is the expert assistance needed; (2) what would the expert assistance accomplish for the accused; and (3) why is the defense counsel unable to gather and present the evidence that the expert assistant would be able to develop
2. military judge did not abuse his discretion in denying defense request for expert where: (1) government made a forensic chemist and an explosives expert available; (2) defense conceded at trial that the expert proffered by the government was an expert; (3) the record did not show any efforts on the part of the defense to determine if an expert existed who could contradict the government expert; and (4) the record did not show any independent research by the defense or any specific basis for questioning the government expert

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Generally

1. the prosecution has the burden of establishing the admissibility of a confession, establishing by a preponderance of the evidence that the confession was voluntary

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Voluntariness

1. the prosecution has the burden of establishing the admissibility of a confession, establishing by a preponderance of the evidence that the confession was voluntary
2. in spite of unwarned earlier questioning, a confession given later was voluntary where: (1) statements made during initial unwarned interview were not the product of actual coercion; (2) proper warnings preceded second interview; (3) other then the inherent coercive atmosphere of a station house, appellant was not deprived of personal comforts during second interrogation; (4) although no cleansing warning was given, appellant appeared to understand his rights; and, (5) there was no reference to earlier unwarned statements

Core Criminal Law Subjects: Witnesses: Ake Appointments

1. defense is authorized the employment of experts at government expense where the testimony would be “relevant and necessary,” if the government cannot or will not provide an adequate substitute; the test for necessity has three prongs: (1) why is the expert assistance needed; (2) what would the expert assistance accomplish for the accused; and (3) why is the defense counsel unable to gather and present the evidence that the expert assistant would be able to develop
2. military judge did not abuse his discretion in denying defense request for expert where: (1) government made a forensic chemist and an explosives expert available; (2) defense conceded at trial that the expert proffered by the government was an expert; (3) the record did not show any efforts on the part of the defense to determine if an expert existed who could contradict the government expert; and (4) the record did not show any independent research by the defense or any specific basis for questioning the government expert

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Appointment of experts

1. defense is authorized the employment of experts at government expense where the testimony would be “relevant and necessary,” if the government cannot or will not provide an adequate substitute; the test for necessity has three prongs: (1) why is the expert assistance needed; (2) what would the expert assistance accomplish for the accused; and (3) why is the defense counsel unable to gather and present the evidence that the expert assistant would be able to develop

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Confessions and admissions

1. the prosecution has the burden of establishing the admissibility of a confession, establishing by a preponderance of the evidence that the confession was voluntary

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. voluntariness of a confession is a question of law subject to de novo review; any special findings of fact are the basis for reviewing the question of voluntariness unless those findings are clearly erroneous
2. military judge’s decision on a request for expert assistance is reviewed for abuse of discretion