U.S. v. Gardinier, 65 M.J. 60

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

1. a military investigator who interviews a suspect must provide that suspect with the statutorily required rights warnings under Article 31(b), UCMJ; with few exceptions, statements obtained in violation of this article may not be received in evidence against an accused in a trial by court-martial
2. a military judge’s failure to exclude an accused’s statement to a military CID agent and an accompanying videotape of that interview, which followed an earlier interview conducted by a civilian detective who gave the accused two Miranda warnings, was error, where the military CID agent failed to give the accused a rights advisement under Article 31(b), UCMJ, and where the civilian detective was not conducting a joint investigation with the military CID agent at the time; Article 31(b) rights differ slightly from Miranda rights; Congress enacted Article 31(d) as a strict enforcement mechanism to implement the rights’ warning requirements of Article 31(b); Article 31(d) provides that no statement obtained from any person in violation of this article may be received in evidence against him in a trial by court-martial; in addition, MRE 305(a) and (c) provide that statements obtained without a proper rights warning are defined as involuntary and excluded from evidence by operation of MRE 304(a)
3. where an earlier statement was involuntary only because the accused had not been properly warned of his Article 31(b), UCMJ, rights, the voluntariness of the second statement is determined by the totality of the circumstances; an earlier unwarned statement is a factor in this total picture, but it does not presumptively taint the subsequent statement; if a cleansing warning has been given -- where the accused is advised that a previous statement cannot be used against him -- that statement should be taken into consideration; if a cleansing statement is not given, however, its absence is not fatal to a finding of voluntariness

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

1. where an earlier statement was involuntary only because the accused had not been properly warned of his Article 31(b), UCMJ, rights, the voluntariness of the second statement is determined by the totality of the circumstances; an earlier unwarned statement is a factor in this total picture, but it does not presumptively taint the subsequent statement; if a cleansing warning has been given -- where the accused is advised that a previous statement cannot be used against him -– that statement should be taken into consideration; if a cleansing statement is not given, however, its absence is not fatal to a finding of voluntariness
2. after the accused received a proper Article 31(b) rights advisement, his decision to make a statement to a military CID agent despite an earlier unwarned statement was made voluntarily, where the agent told the accused that another statement was needed because he may not have been properly warned of his rights before the earlier statement, the accused signed the written rights advisement indicating that he waived his rights before giving his subsequent statement, there was no suggestion that either statement was given at a coercive event, and the accused’s relative age and maturity level did not raise voluntariness concerns

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

1. where an earlier statement was involuntary only because the accused had not been properly warned of his Article 31(b), UCMJ, rights, the voluntariness of the second statement is determined by the totality of the circumstances; an earlier unwarned statement is a factor in this total picture, but it does not presumptively taint the subsequent statement; if a cleansing warning has been given -- where the accused is advised that a previous statement cannot be used against him -- that statement should be taken into consideration; if a cleansing statement is not given, however, its absence is not fatal to a finding of voluntariness

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. the Confrontation Clause of the Constitution bars the admission of testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the accused had a prior opportunity for cross-examination
2. without articulating a comprehensive definition of testimonial in Crawford v. Washington, 541 US 36 (2004), the Supreme Court set forth various formulations of the core class of testimonial statements; these formulations should not be viewed as an exhaustive list of testimonial statements; nevertheless, one of these formulations is statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial
3. several factors that can be considered when distinguishing between testimonial and nontestimonial hearsay for Confrontation Clause purposes include: (1) was the statement elicited by or made in response to law enforcement or prosecutorial inquiry?; (2) did the statement involve more than a routine and objective cataloging of unambiguous factual matters?; and (3) was the primary purpose for making, or eliciting, the statement the production of evidence with an eye toward trial?; under this factors approach, the goal is an objective look at the totality of the circumstances surrounding the statement to determine if the statement was made or elicited to preserve past facts for a criminal trial
4. statements made by an alleged child victim to a sexual assault nurse examiner were testimonial hearsay, and their admission into evidence was error, where the nurse examiner, who specialized in conducting forensic medical examinations, performed her forensic medical examination on the alleged victim at the behest of law enforcement, with the forensic needs of law enforcement and prosecution in mind; on balance the evidence tips towards a conclusion that the statements were elicited in response to a law enforcement inquiry with the primary purpose of producing evidence with an eye toward trial

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

1. whether the statements of a witness who did not appear at trial are inadmissible testimonial hearsay under Crawford v. Washington, 541 US 36 (2004), is a question of law that an appellate court reviews de novo