U.S. v. Cuento, 60 M.J. 106

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

1. the necessary inquiry in determining the voluntariness of a confession is whether the confession is the product of an essentially free and unconstrained choice by its maker; if, instead, the maker’s will was overborne and his capacity for self-determination was critically impaired, use of his confession would offend due process
2. a confession is not automatically inadmissible, even though it was made after another confession which was clearly involuntary; the prosecution must rebut the presumption that the later confession was the result of the same influence which led to the prior confession
3. where a confession is obtained at a lawful interrogation that comes after an earlier interrogation in which a confession was obtained due to actual coercion, duress, or inducement, the subsequent confession is presumptively tainted as a product of the earlier one; on the other hand, where the earlier confession was "involuntary" only because the suspect had not been properly warned of his panoply of rights to silence and to counsel, the voluntariness of the second confession is determined by the totality of the circumstances; the earlier, unwarned statement is a factor in this total picture, but it does not presumptively taint the subsequent confession
4. when a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession; only those statements that are “actually coerced” require application of the more stringent test generally described in MRE 304(b)(3), as opposed to a showing of voluntariness by totality of the circumstances
5. while a so-called “cleansing statement” is a factor to consider in evaluating the voluntariness of a confession made following a prior, unwarned statement, this Court has held that where there are successive statements, it is not a precondition to the admission of a properly obtained statement, that the accused be informed that a previous statement cannot be used against him; however, if there has been an earlier unwarned statement, the absence of a cleansing warning before the subsequent statement is one of the circumstances to be considered in determining voluntariness
6. evidence that was obtained as a result of an involuntary statement may be used when the evidence would have been obtained even if the involuntary statement had not been made; even evidence challenged as “derivative” from an involuntary statement is admissible if the military judge finds by a preponderance of the evidence that it was not obtained by use of the statement, or that the evidence would have been obtained even if the statement had not been made
7. in determining whether appellant’s subsequent NCIS statement was voluntary, the Court assumed, arguendo, that his earlier statement was produced by the coercive effect of the prerequisites placed on appellant’s reunification with his family by the California Child Protective Service; however, under the circumstances of this case, particularly the intervening events between the first and second statements, the Government had carried its burden of demonstrating that the first statement did not taint the second statement, and that the second was voluntary; these circumstances included the following factors: (1) appellant was invited, not ordered to NCIS, and he arrived without command escort, (2) appellant was not in custody, (3) appellant made his second statement seven days after the first, with significant time for cool reflection and consultation with an attorney, (4) appellant was told that he was at NCIS voluntarily and could leave at any time, (5) appellant was advised of his rights before his second statement, and he did not ask for an attorney or indicate that he wanted to leave or stop answering questions, (6) no mention was made by the NCIS agents to appellant about his prior statement, and no mention was made of the Child Protective Service prerequisites, and (7) the agents did not make any promises, inducements, or threats

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

1. voluntariness of a confession is a question of law that an appellate court independently reviews, de novo
2. our standard of review on petitions for new trial is deferential; we review only for an abuse of discretion
3. when presented with a petition for new trial, the reviewing court must make a credibility determination, insofar as it must determine whether the newly discovered evidence, if considered by a court-martial in the light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused; the reviewing court does not determine whether the proffered evidence is true; nor does it determine the historical acts; it merely decides if the evidence is sufficiently believable to make a more favorable result probable
4. we find a Court of Criminal Appeals has abused its discretion when we reach a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of the relevant factors; this is a textbook standard and involves more than a mere difference of opinion

Trial Stages: Petition for a New Trial: Generally

1. petitions for new trial based on a witness’s recantation are not viewed favorably in the law; they should not be granted unless the court is reasonably well satisfied that the testimony given by a material witness is false; recantations of trial testimony are viewed by federal courts with extreme suspicion
2. when the alleged perjurer is the prosecutrix herself, we remain disinclined to burden appellant with a mechanical application of the rigorous new trial standard; under the unique circumstances of this case, including the lack of any corroborating physical evidence, that appellant, both before and during trial, recanted his prior admissions, and that prosecutrix’s testimony was the only other evidence against appellant, we find that the weight of the prosecutrix’s recantation cannot adequately be measured without a DuBay hearing before a military judge at which she would testify under oath and be subject to cross-examination