U.S. v. Benner, 57 M.J. 210

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Article 31

1. when a chaplain questions a penitent in a confidential and clerical capacity, the results may not be used in a court-martial because they are privileged; therefore, the Article 31(b) and Tempia warnings are not required; conversely, if a military officer who is also a chaplain acts on the premise that the penitent’s disclosures are not privileged, then warnings are required
2. a chaplain was acting outside his responsibilities as a chaplain, and he was acting solely as an Army officer where the chaplain informed appellant that he was obliged to report appellant’s action; as such, he was required to provide an Article 31 warning before further questioning

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

1. confession that follows an earlier confession obtained due to actual coercion, duress, or unlawful inducement is presumptively tainted
2. a confession taken in compliance with Article 31(b) and Mil.R.Evid. 305 that follows an earlier unwarned confession obtained in violation of Article 31(b) and Mil.R.Evid. 305 is not presumptively tainted, but is admissible if the subsequent confession is determined to be voluntary by the totality of the circumstances
3. in determining whether a subsequent confession is voluntary under the totality of the circumstances test, some of the relevant circumstances include: (1) the earlier, unwarned statement, but it does not presumptively taint the subsequent confession; (2) the fact that the subsequent confession was preceded by adequate warnings; and (3) while a cleansing warning is not a prerequisite to admissibility, an earlier unwarned statement and the lack of a cleansing warning before the subsequent statement are also part of the totality of the circumstances
4. where actual coercion, duress, or unlawful inducement was not involved in an initial unlawful confession, the totality of the circumstances is reviewed de novo to determine, as a matter of law, whether appellant’s subsequent confession meets the following test: Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process
5. although CID advised appellant of his rights prior to a subsequent confession, the chaplain had made it clear that if he invoked his rights, the chaplain would reveal his confession; such facts contribute to a holding that the Government did not carry its burden of establishing that appellant’s confession was voluntary

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

1. we review de novo a military judge’s determination that a confession is voluntary
2. appellant’s confession to CID was involuntary where appellant went to the chaplain for help but instead he was advised that Army Regulations and the Family Advocacy Center rules mandated that the chaplain “turn him in” and reveal his confession; faced with this Hobson’s choice of confessing to CID or having the chaplain reveal his confession to CID, he had little or no choice but to confess
3. appellant’s will was overborne, his capacity for self-determination was critically impaired, and the use of his confession offends due process where appellant was seeking clerical help, but instead of providing confidential counseling, the chaplain informed appellant that he was obliged to report appellant’s action and thus, unknown to the chaplain, breach the communications to clergy privilege
4. although CID advised appellant of his rights prior to a subsequent confession, the chaplain had made it clear that if he invoked his rights, the chaplain would reveal his confession; such facts contribute to a holding that the Government did not carry its burden of establishing that appellant’s confession was voluntary

Core Criminal Law Subjects: Evidence: Privileges › Communications to clergy

1. when a chaplain questions a penitent in a confidential and clerical capacity, the results may not be used in a court-martial because they are privileged
2. when a chaplain questions a penitent in a confidential and clerical capacity, the results may not be used in a court-martial because they are privileged; therefore, the Article 31(b) and Tempia warnings are not required; conversely, if a military officer who is also a chaplain acts on the premise that the penitent’s disclosures are not privileged, then warnings are required
3. chaplain revealed appellant’s confidences, in violation of the privilege protected by Mil.R.Evid. 503 and Army Regulations, when he told military police that appellant was at the MP station to make a statement regarding his improper relationship with his stepdaughter

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

1. we review de novo a military judge’s determination that a confession is voluntary