If he is successful, this will obviously improve his chances of
being found not guilty.
1. At the court-martial, before the accused enters a plea (guilty or not
guilty), the accused may raise any motions that he may have. This is done at
the portion of the trial called the Article 39A Session. This is, again, the
time for the raising of pretrial motions (Military Rules of Evidence 304(d)2).
The law defines a statement as being involuntary "if it is 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" (MRE
314(c)3). Also, Article 31d, UCMJ, states that "no statement obtained from any
person in violation of this article, or through the use of coercion, unlawful
influence, or unlawful inducement, may be received in evidence against him in
trial by court-martial."
2. Once the accused has made his motion to suppress, "the prosecutor has the
burden of establishing the admissibility of the evidence" (MRE 304(d)5). The
defense may present evidence and the accused may testify on the motion. The
military judge must then find the statement to have been made voluntarily
before it may be accepted into evidence. Frequently, what is involved is an
This is one that has not been reduced to writing.
valid and admissible (the same as a written confession) and "may be proved by
the testimony of anyone who heard the accused make it" (MRE 304(b)1).
Consequently, whoever questioned the suspect will most likely be a witness at
the court-martial. As a matter-of-fact, this person will quite likely be the
only witness who can testify for the government as to how the statement was
Indeed, the accused and the questioner may have been the only
persons present when the statement was made. Unless the questioner can testify
credibly that he followed the applicable rules, the confession will not be
accepted into evidence. Unless you know the basics of what these rules are,
then, the government's position at trial may be severely handicapped.
3. If the military judge finds the confession to have been legally obtained
and, therefore, admissible, he will then instruct the court members "to give
such weight to the statement as it deserves under all the circumstances." The
defense may still argue to the court members that the statement is unworthy of
being believed (MRE 304(e)2).
After the Article 39A Session is over, the
witness may find himself testifying again as to the circumstances surrounding
the taking of the statement.
The U.S. Supreme Court held that even if a
defendant was unsuccessful in moving to suppress his confession, he may still
argue to the jury that it is unreliable.
He has a constitutional right to
present such evidence. In fact, his case "may stand or fall on his ability to
convince the jury that the manner in which the confession was obtained casts
Crane v. Kentucky, 476US683, 90LEd2d 636, 106SCt
4. It should be apparent that the issue of the admissibility/voluntariness of
the statement is a critical issue at the court-martial. If those who question
suspects are not familiar with the applicable legal rules, the result can be a
disaster. The confession may be inadmissible, and the offender may escape