§ 129.3. Adjuration to speak truth.

See 20 Am Jur, Evidence $ 508.

The accused signed a detailed confession disclosing that while standing watch he extracted wallets from the pants of three other persons. The first paragraph of the confession contained a statement, separately initialed by the accused, to the effect that he had been advised and warned in accordance with UCMJ, Art 31(b). At the accused's trial for larceny, he objected to the introduction of the confession on the ground that it had been obtained by unlawful inducement. The only testimony offered in support of his contention was a statement that he had been told it would be easier on him if he made a statement. On cross-examination he admitted that the statement had been given voluntarily and of his own free will. Held: The confession was not unlawfully induced. CGCMS 19991, Jones (1954) 15 CMR 591.

The fact that the accused was told that it would be better for him to tell the truth does not render a confession made by him involuntary. (Citing Martin v. U. S., 166 F2d 76; Sparf and Hansen v. U. S., 156 US 51, 39 L ed 343, 15 S Ct 273; U. S. v. Colbert (No. 401), 2 USCMA 3, 6 CMR 3; 20 Am Jur, Evidence § 508. Distinguishing Bram v. U. S., 168 US 532, 42 L ed 568, 18 S Ct 183. Overruling Court-Martial Orders 12, 1931, 13 and 2, 1943, 66.) Op JAGN 1954/196. 28 January 1954.

The mere assertion that the investigator had informed the accused that making a statement would probably help him is insufficient, even if believed, to destroy the voluntariness of the statement. (Citing MCM, 1951, par 140a; U. S. v. Colbert (No. 401), 3 USCMA 3, 6 CMR 3; U. S. v. Monge (No. 9), 1 USCMA 95, 2 CMR 1; U. S. v. Sapp (No. 14), 1 USCMA 100, 2 CMR 6.) United States v. Borner et al (Nos. 1284, 1394, 1468) 3 USCMA 306, 12 CMR 62, affirming CM 350647, 8 CMR 483.

§ 129.7 Admission of confession as prejudicial error.

Matters formerly in this section are now classified to other decimal sections under § 129.

§ 131. Use of Force or Fear

See 20 Am Jur, Evidence §§ 514 et seq.

§ 131.1. Generally.

The accused was charged with and found guilty of larceny. The alleged victim of the theft testified as to the circumstances of his loss and to pursuing a man later recognized as the accused from his barracks to a motor pool. He testified that he overtook the accused at the motor pool, knocked him down, demanded his wallet, and when the accused denied taking it, proceeded to choke him whereupon the accused stated "I'll get it, I'll get it for you". He then returned the accused to the squad room where the accused repeated that he would get the wallet. The accused denied any knowledge of the incident when the Charge of Quarters told him he would have to turn him in and later

repeated his denial in the orderly room although the victim again put his hands on the accused. On cross-examination the victim stated that it was only after he started to choke the accused that he made any admission as to taking the wallet. Two other witnesses corroborated the victim's testimony as to the accused's second admission in the squad room. One stated that the victim was shaking the accused at the time, while the other testified that the victim had the accused by the arm when they entered the squad room but did not indicate whether this condition persisted until the time the accused made the admission. On the trial the accused denied taking the wallet and testified that he told the victim he would get the wallet to obtain release from being choked. The defense objected to the admission in evidence of both the admission made at the motor pool and that made in the squad room. Held: While the evidence is somewhat conflicting as to the circumstances of the second admission, clearly the first was extracted from the accused by force and violence and its admission into evidence over the objection of the accused was violative of UCMJ. Art 31, prohibiting the admission in evidence of statements obtained through coercion, unlawful influence, or unlawful inducement, and reversal is required regardless of other evidence. (Citing United States v. Williams (No. 1212), 2 USCMA 430, 9 CMR 60; CM 329162, Sliger et al, 77 BR 361, 7 Bull. JAG 13; Brown v. Allen, 344 US 443, 97 L ed 469, 73 S Ct 397, 437; Stroble v. California, 343 US 181, 96 L ed 872, 72 S Ct 599; Lyons v. Oklahoma, 322 US 596, 88 L ed 1481, 64 S Ct 1208; Kotteakos et al v. United States, 328 US 750, 90 L ed 1557, 66 S Ct 1239; Malinski v. New York, 324 US 401, 420, 89 L ed 1029, 65 S Ct 781; Bram v. United States, 168 US 532, 540-552, 42 L ed 568, 18 S Ct 183; Lee v. Mississippi, 332 US 742, 92 L ed 330, 68 S Ct 300; Haley v. Ohio, 332 US 596, 92 L ed 224, 68 S Ct 302 (United States v. Monge (No. 9), 1 USCMA 95, 2 CMR 1, and United States v. Sapp (No. 14), 1 USCMA 100, 2 CMR 6, distinguished.) CM 362110, Branch (1953)

10 CMR 417.

That four military policemen, two highway patrolmen, two soldiers. with mine detectors, and two CID agents were present when the accused directed the CID agents to the area where the bolt to the murder weapon was hidden and were present when it was found did not render the bolt inadmissible in evidence, inasmuch as the accused had been warned of his rights under UCMJ, Art 31, he had offered to assist in finding the bolt, the authorities were hunting through the area to find an important but hard-to-discover piece of evidence, and there was no showing or reason to assume that such an array of force was to compel an admission. The law is well-settled that the mere fact that the accused was in custody or confinement at the time of giving the statement does not render it inadmissible. (Citing Hopt v. Utah, 110 US 574, 28 L ed 262, 4 S Ct 202; Sparf v. United States, 156 US 51, 39 L ed 343, 15 S Ct 273; Pierce v. United States, 160 US 355, 40 L ed 454, 16 S Ct 321.) United States v. Vigneault (No. 2432), 3 USCMA 247, 12 CMR 3, affirming CM 354344, 9 CMR 226.

§ 131.4. Threats to prosecute.

See 20 Am Jur, Evidence § 517.

A CID agent took the accused and two others suspected of similar offenses to the office of a lieutenant colonel who was the executive officer of the command of which the accused's company was a part. The evidence was undisputed that he advised the men that it would be to their benefit to co-operate with the CID. Testifying as to what he had told the men, the colonel stated “I told them I personally was not going to press charges but that they would be forwarded to higher headquarters, and if higher headquarters decided that there would be a general court-martial that was up to higher headquarters, and if they did not cooperate I would do my darndest to see that higher headquarters would prefer a general court martial." In a subsequent interview, the accused still refused to make a statement to the CID, and the colonel was then called to the CID office and repeated to the accused what he had told him previously. The colonel indicated to the accused that if he cooperated with the CID he would do all in his power to see that the accused was not punished, and that he had no intentions of preferring charges unless he was so directed by the commanding general, but that if the accused did not cooperate with the CID he would make every effort in his power to arrange charges for general court-martial. Subsequent to this interview the accused indicated his willingnes to make a statement. The CID agent then advised him of his rights under UCMJ, Art 31, and recorded his statement on a tape recorder. Preliminary to questioning him the agent had the accused acknowledge in the recording that he understood his rights and that the statement he was about to make was voluntary and not the result of any promise or threat made by himself or the CID. Held: It is clear that the accused fully understood his rights against self-incrimination. However, the statements of the colonel can only be regarded as a tempting promise to recommend clemency or leniency as a reward to the accused for making a statement to the CID coupled with and enforced by threat of prosecution by general court-martial if the statements were not made. The confessions were therefore the product of unlawful inducements and inadmissible in evidence. The statements of the colonel were of a substantial nature in view of the circumstances surrounding the taking of the confession and such statements gave adequate reason for the accused to believe that the colonel, his superior officer, was in a position to effectuate what he had told the accused. (Citing U. S. v. Welch (No. 196), 1 USCMA 402, 3 CMR 136; U. S. v. Wilson and Harvey (No. 647), 1 USCMA 402, 3 CMR 136.)

Held also: Although the CID agent attempted to vitiate the effect of these statements by having the accused acknowledge that his confession was not the result of any threats or promises made either on the part of the CID agent or himself, it is clear that there were no intervening circumstances to cause the colonel's statements to cease to operate upon the mind of the accused at the time the confession was made, but on the contrary the colonel's inducements were both continuing and unlawful motivating reasons for the accused's ultimate statement. CM 365105, Cash (1953) 12 CMR 215.

§ 131.5. Admission of confession as prejudicial error. Matters formerly in this section are now classified to other decimal sections under § 131.

§ 133. Caution; Failure to Warn of Rights

§ 133.1. Generally.

See 20 Am Jur, Evidence § 505.

On a trial at which the accused was convicted of larceny, certain admissions against interest made by him were admitted in evidence. It was shown that prior to making the admissions, the accused had been asked if he was aware of his rights and that he had replied in the affirmative. However, the record did not affirmatively show that the accused was told of the nature of the offense of which he was suspected, of his right to remain silent, and that anything he might say could be used against him, as required by UCMJ, Article 31(b). On the other hand, neither was it shown that he was not so advised. The evidence did not indicate and the defense did not contend that the admissions were involuntary, but, the defense did contend that before any pretrial statement is admissible, the prosecution must show affirmatively that UCMJ, Article 31(b), was complied with. Held: Where a pretrial statement is an admission against interest and there is no affirmative showing that UCMJ, Article 31(b), was not complied with, nor is there any indication that the statement was involuntary, it is unnecessary for the prosecution to affirmatively establish either voluntariness or compliance with Article 31(b). (Citing UCMJ, Article 31(b), (d); MCM, 1951, par 140a; United States v. Williams (No. 1212), 2 USCMA 430, 9 CMR 60; United States v. Pedersen (No. 838), 2 USCMA 263, 8 CMR 63; United States v. Wilson and Harvey (No. 647), 2 USCMA 248, 8 CMR 48; United States v. Welch (No. 196), 1 USCMA 402, 3 CMR 136; ACM S-6129, Troupe, 10 CMR 878; CM 361215, Thomas, 10 CMR 299; CM 360823, Price, 9 CMR 442; CM 360614, Seymour, 9 CMR 455; ACM 6458, Taylor, 10 CMR 669.) In practical application most authorities have held pretrial admissions erroneously received only where the records of trial have contained affirmative showings that UCMJ, Article 31(b), has not been complied with (United States v. Wilson and Harvey (No. 647), 2 USCMA 248, 8 CMR 48; United States v. Williams (No. 1212), 2 USCMA 430, 9 CMR 60; United States v. Pedersen (No. 838), 2 USCMA 263, 8 CMR 63; United States v. Welch (No. 196), 1 USCMA 402, 3 CMR 136; ACM S-6129, Troupe, 10 CMR 878; ACM 6458, Taylor, 10 CMR 669; CM 360823, Price, 9 CMR 442; cf. CM 360614, Seymour, 9 CMR 455; CM 361215, Thomas, 10 CMR 299). Paragraph 140a, MCM, 1951, provides that a confession must be affirmatively shown to be voluntary but that an admission needs no such preliminary showing if there is no indication that it was involuntary. The same provision also provides that in the case of a confession or admission obtained by interrogation or request during an official investigation in which the accused was a person accused or suspected of the offense, the statement may not be received in evidence, if affirmative evidence that it was voluntary is required, unless it is shown that through preliminary warning of the right against self-incrimina

tion, the accused was aware of his right not to make the statement and understood that it might be used as evidence against him. These provisions indicate that affirmative proof of compliance with Article 31(b), is required where the parallel requirement exists to show the voluntary nature of the statement. Thus in all confessions the prosecution must show compliance with Article 31b since all confessions must be shown to be voluntary. However, as to admissions the only admissions which must be shown to be voluntary are those where there is an indication that the admission was involuntary and accordingly the dual requirement of showing voluntariness and compliance with Article 31b must be satisfied only where there is an indication of involuntariness. (Illustrative situations requiring showing of both voluntariness and compliance with Article 31b, see CM 361215, Thomas, 10 CMR 299; CM 360823, Price, 9 CMR 442.) ACM S-6031, Ketchum (1953) 10 CMR 930.

On a trial for desertion, the prosecution introduced a deposition of the arresting MP. One of the interrogatories concerned what conversation took place at the time of arrest and the deponent stated that the accused admitted being AWOL and that his reason for going AWOL was to get out of the service and that he would go AWOL again until he was kicked out of the service. The evidence showed that the accused was absent for a period of some 38 days, that this was the fourth period of absence within a little over three months, that he was apprehended a distance of some 300 miles from his station and in civilian clothes. There was no affirmative showing that the confession was voluntary and that the accused had been informed of his rights under UCMJ, Art 31(b), but, on the other hand there was no evidence that Article 31 had not been complied with.

Held that:

-the admission of the confession into evidence was error on the ground that there was no affirmative showing that the statement was voluntary and that the accused's rights against self-incrimination had been read or explained to him, notwithstanding the fact that there was no evidence that the statement was not voluntary and that the requirements of UCMJ, Art 31(b), had not been complied with. (Citing U. S. v. Williams (No. 1212), 2 USCMA 430, 9 CMR 60.)

the admission of the confession was prejudicial since the evidence was not such as to compel a finding of guilty of desertion and the confession supplied the needed evidence of the accused's intent.

- the above evidence together with evidence of a morning report showing the inception of the unauthorized absence, is sufficiently strong to permit application of the compelling evidence rule to sustain a conviction of the lesser included offense of unauthorized absence. (Citing U. S. v. Doyle (No. 265), 1 USCMA 545, 4 CMR 137; distinguishing U. S. v. Wilson and Harvey (No. 647), 2 USCMA 248, 8 CMR 48; U. S. v. Williams (No. 1212), 2 USCMA 430, 9 CMR 60; ACM S-6129, Troupe, 10 CMR 878.) In taking this position two decisions of the Court of Military Appeals, indicating that a failure to comply with the mandate of Art 31(b) may constitute general prejudice of such nature as to vitiate the proceedings regard