U.S. v. Freeman, 65 M.J. 451

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

1. a confession is involuntary, and thus inadmissible, if it was obtained in violation of the self-incrimination privilege or due process clause of the Fifth Amendment to the Constitution of the United States, Article 31, or through the use of coercion, unlawful influence, or unlawful inducement
2. a court examines the totality of the surrounding circumstances to determine whether the confession is the product of an essentially free and unconstrained choice by its maker; in determining whether an accused’s will was overborne in a particular case, the court assesses both the characteristics of the accused and the details of the interrogation
3. promises are considered only a factor in the totality of the circumstances equation to determine whether a confession is voluntary; they are not of themselves determinative of involuntariness; similarly, lies, threats, or inducements are not determinative either; after all, as the Miranda rules were issued to counter-balance the psychological ploys used by police officials to obtain confessions, the presence of those ploys can hardly be considered to per se result in an involuntary confession
4. as the application of the totality of circumstances standard rests with the particular facts of each case, a threat to turn an accused over to civilian law enforcement is but one factor to weigh in deciding the voluntariness of a confession; a court does not examine each of the facts separately but rather in conjunction with all the other facts in the case
5. in this case, under the totality of the circumstances, appellant’s confession was voluntary, where the characteristics of appellant and the details of the interrogation favored a finding of voluntariness; despite the fact that interrogators lied to appellant about the evidence they had and threatened to turn his case over to civilian authorities where he would face stiffer punishment, appellant was advised of his rights to counsel and to remain silent and waived those rights, he never complained about the process, never asked for an attorney, never asked to stop the interview or leave, or in any other way indicated that he felt coerced or pressured into making a statement, he had several breaks during the interrogation in which he left the interrogation room, went outside, and smoked, he was provided water and declined offers for other food and drink, he was neither physically abused nor threatened with such abuse, and he prepared a written statement by himself, outside the presence of any investigator; under the totality of these circumstances, appellant’s confession was voluntary

Core Criminal Law Subjects: Evidence: Expert / Scientific Testimony

1. servicemembers are entitled to investigative or other expert assistance when necessary for an adequate defense; the mere possibility of assistance is not sufficient to prevail on the request; instead, the accused has the burden of establishing that a reasonable probability exists that (1) an expert would be of assistance to the defense, and (2) that denial of expert assistance would result in a fundamentally unfair trial; to establish the first prong, the accused must show (1) why the expert assistance is needed, (2) what the expert assistance would accomplish for the accused, and (3) why the defense counsel were unable to gather and present the evidence that the expert assistance would be able to develop
2. in this case, the military judge did not abuse his discretion in denying the defense’s request for an expert consultant in police interrogations because, even assuming arguendo the consultant’s expertise and that the defense counsel could benefit from the consultant’s assistance, the defense counsel never established why they were unable to gather and present any evidence about interrogations that the expert would have been able to develop and why they were unable to cross-examine the investigators on their interrogation techniques and their use of those techniques in eliciting a confession; what the defense counsel really wanted was knowledge of interrogations that they could have developed themselves, and thus they failed to establish the necessity for expert assistance

Core Criminal Law Subjects: Witnesses: Experts

1. servicemembers are entitled to investigative or other expert assistance when necessary for an adequate defense; the mere possibility of assistance is not sufficient to prevail on the request; instead, the accused has the burden of establishing that a reasonable probability exists that (1) an expert would be of assistance to the defense, and (2) that denial of expert assistance would result in a fundamentally unfair trial; to establish the first prong, the accused must show (1) why the expert assistance is needed, (2) what the expert assistance would accomplish for the accused, and (3) why the defense counsel were unable to gather and present the evidence that the expert assistance would be able to develop

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

1. servicemembers are entitled to investigative or other expert assistance when necessary for an adequate defense; the mere possibility of assistance is not sufficient to prevail on the request; instead, the accused has the burden of establishing that a reasonable probability exists that (1) an expert would be of assistance to the defense, and (2) that denial of expert assistance would result in a fundamentally unfair trial; to establish the first prong, the accused must show (1) why the expert assistance is needed, (2) what the expert assistance would accomplish for the accused, and (3) why the defense counsel were unable to gather and present the evidence that the expert assistance would be able to develop

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

1. the prosecution bears the burden of establishing by a preponderance of the evidence that the confession was voluntary
2. the voluntariness of a confession is a question of law; a court examines the totality of the surrounding circumstances to determine whether the confession is the product of an essentially free and unconstrained choice by its maker; in determining whether an accused’s will was overborne in a particular case, the court assesses both the characteristics of the accused and the details of the interrogation; some of the factors taken into account have included the youth of the accused, his lack of education, his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep; the court determines the factual circumstances surrounding the confession, assesses the psychological impact on the accused, and evaluates the legal significance of how the accused reacted

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Admission/suppression of evidence

1. an appellate court reviews a military judge’s decision to deny a motion to suppress evidence -- like other decisions to admit or exclude evidence -- for an abuse of discretion; abuse of discretion is a term of art applied to appellate review of the discretionary judgments of a trial court; an abuse of discretion occurs when the trial court’s findings of fact are clearly erroneous or if the court’s decision is influenced by an erroneous view of the law; further, the abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range

Trial Stages: Appeals: Harmless / Prejudicial Error

1. if an appellate court finds a confession involuntary, it must set aside the conviction unless it determines the error in admitting the confession was harmless beyond a reasonable doubt
2. assuming the admission on the merits of three acts of uncharged misconduct toward the victim was error, the error was harmless where the three acts were relatively minor and, in the context of the entire record, and in particular appellant’s confession, such error did not have a substantial influence on the members’ verdict

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

1. an appellate court reviews a military judge’s decision to deny a motion to suppress evidence -- like other decisions to admit or exclude evidence -- for an abuse of discretion; abuse of discretion is a term of art applied to appellate review of the discretionary judgments of a trial court; an abuse of discretion occurs when the trial court’s findings of fact are clearly erroneous or if the court’s decision is influenced by an erroneous view of the law; further, the abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range
2. the voluntariness of a confession is a question of law that an appellate court reviews de novo; an appellate court examines the totality of the surrounding circumstances to determine whether the confession is the product of an essentially free and unconstrained choice by its maker; in determining whether an accused’s will was overborne in a particular case, the court assesses both the characteristics of the accused and the details of the interrogation; some of the factors taken into account have included the youth of the accused, his lack of education, his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep; the court determines the factual circumstances surrounding the confession, assesses the psychological impact on the accused, and evaluates the legal significance of how the accused reacted
3. to prevail on a servicemember’s request for investigative or other expert assistance, the mere possibility of assistance is not sufficient; instead, the accused has the burden of establishing that a reasonable probability exists that (1) an expert would be of assistance to the defense, and (2) that denial of expert assistance would result in a fundamentally unfair trial; to establish the first prong, the accused must show (1) why the expert assistance is needed, (2) what the expert assistance would accomplish for the accused, and (3) why the defense counsel were unable to gather and present the evidence that the expert assistance would be able to develop
4. an appellate court reviews a military judge’s decision on a defense request for investigative or other expert assistance for an abuse of discretion