U.S. v. Bresnahan, 62 M.J. 137

First Principles: Constitutional Matters: Confessions

1. the Fifth Amendment to the Constitution prohibits any person from being compelled in any criminal case to be a witness against himself

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

1. Article 31(d), UCMJ, prohibits the admission of statements obtained from an accused through the use of coercion, unlawful influence, or unlawful inducement

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

1. an accused’s confession must be voluntary to be admitted into evidence
2. the accused’s confession to a detective that he might have shaken his infant son to try to stop his crying was voluntary under the totality of the circumstances, even though the detective pressured the accused by telling him that the doctors needed to know exactly what happened to his son so they could save his life; although the detective had the intent of securing a confession by exploiting the accused’s emotional ties to his son, her statement was accurate, and she was not confrontational or intimidating; in addition, at the time, the accused had served over five years in the Army, did not suffer from any mental deficiency, and was not detained, questioned for a prolonged amount of time, or held in isolation for any amount of time; finally, regardless of whether the accused actually believed the doctors would not help his son unless he confessed, the detective’s statements would not provide a motive for him to lie; if the accused did not shake his son, then telling the detective that he did shake him would not help the doctors determine how to treat the baby appropriately

Core Criminal Law Subjects: Evidence: Expert / Scientific Testimony

1. profile evidence is defined as evidence that presents a characteristic profile of an offender, such as a pedophile or child abuser, and then places the accused’s personal characteristics within that profile as proof of guilt; generally, the use of any profile characteristic as evidence of guilt or innocence is improper at a criminal trial; profile evidence is admissible only in narrow and limited circumstances; for example, it is admissible in rebuttal when a party opens the door by presenting potentially misleading testimony
2. the military judge did not err in allowing the trial counsel, during his cross-examination of a defense expert, to question the expert’s knowledge of scientific studies that concluded that male caregivers were more likely to be the perpetrators in shaken baby cases (i.e., questioning about profile evidence), where the defense counsel opened the door to this type of questioning by having the expert testify about various factors that pointed to the accused’s wife as the one who killed his infant son; even if the military judge erred in not sua sponte excluding such testimony, the error was not plain and obvious, and any error in admitting this evidence was harmless

Core Criminal Law Subjects: Evidence: Uncharged Misconduct

1. an error in allowing the government to introduce uncharged misconduct evidence of prior injuries to the accused’s infant son was harmless in a court-martial of the accused for the involuntary manslaughter of his son, where the government’s case was strong, the defense’s case was weak, the evidence was only admitted for a limited purpose, and there was the lack of any real risk of unfair prejudice to the accused where the evidence did little, if anything, to suggest that it was the accused rather than his wife who caused the fatal injuries to his son; the evidence’s true import was that it made it more likely that the child’s fatal injury was caused by abuse rather than by accident -- an issue that was not in dispute

Core Criminal Law Subjects: Witnesses: Experts

1. profile evidence is defined as evidence that presents a characteristic profile of an offender, such as a pedophile or child abuser, and then places the accused’s personal characteristics within that profile as proof of guilt; generally, the use of any profile characteristic as evidence of guilt or innocence is improper at a criminal trial; profile evidence is admissible only in narrow and limited circumstances; for example, it is admissible in rebuttal when a party opens the door by presenting potentially misleading testimony
2. the military judge did not err in allowing the trial counsel, during his cross-examination of a defense expert, to question the expert’s knowledge of scientific studies that concluded that male caregivers were more likely to be the perpetrators in shaken baby cases (i.e., questioning about profile evidence), where the defense counsel opened the door to this type of questioning by having the expert testify about various factors that pointed to the accused’s wife as the one who killed his infant son; even if the military judge erred in not sua sponte excluding such testimony, the error was not plain and obvious, and any error in admitting this evidence was harmless

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the harmlessness of an erroneous admission of evidence on the merits will be evaluated by weighing: (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question
2. under the plain error standard, appellant must show that any error was plain and obvious and that it resulted in an unfair prejudicial impact on the factfinders’ deliberations

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

1. whether a confession is voluntary is a question of law that an appellate court reviews de novo; this review requires the court to look to the totality of the circumstances to determine whether the confession is the product of an essentially free and unconstrained choice by its maker; in assessing the totality of the circumstances, the court will look to factors such as: the mental condition of the accused; his age, education, and intelligence; the character of the detention, including the conditions of the questioning and rights warning; and the manner of the interrogation, including the length of the interrogation and the use of force, threats, promises, or deceptions
2. a military judge’s ruling on a request for expert assistance will not be overturned absent an abuse of discretion; to reverse for an abuse of discretion involves far more than a difference in opinion
3. if an appellate court concludes that uncharged misconduct evidence was erroneously admitted, the military judge’s decision will not be overturned unless the error materially prejudices the substantial rights of the accused
4. because a lower appellate court’s application of harmless error factors is a question of law, a superior appellate court will review the lower court’s application of the harmlessness factors de novo