Tricking the Subject During Questioning
Sometimes MP investigators use special tactics while questioning a subject. "Tricking" a subject into issuing
statements is one such tactic.
There is a fine line drawn between "tricks" that are permitted and "tricks" that are not permitted. For example,
SPC Arhaid is arrested for burglary with his accomplice PVT Followalong. The two subjects are separated for
questioning. Later, the MP investigator SGT Goodguy interrogates SPC Arhaid. SGT Goodguy tells SPC Arhaid
that his accomplice, PVT Followalong, confessed that SPC Arhaid was involved in the burglary. PVT
Followalong really did not make that statement. In the eyes of the law, is this a legal trick permissible to use to
elicit a confession from SPC Arhaid? Yes, according to case Michigan v. Mosley, 423 U.S. 96 (1975) this tactic
is legal. In this case, the Supreme Court refused to overturn a conviction based on an admission that was obtained
using the same method intended to trap SPC Arhaid.
In the military, the test for permissibility of tricks is two-fold. Permissibility of tricks depends on--
Whether the trick was used to get the subject to sign a waiver. This type of trick is forbidden and
protected by MIRANDA.
Whether the trick was used after a valid waiver of rights was signed. If this is the case, the trick must
not be designed to elicit an untrue confession.
The basis for all confessions is the "voluntariness doctrine." If the subject did not use free will while making a
confession, the confession will be considered involuntary and invalid.
You must remember that the subject may, at anytime invoke his other right to silence or to an attorney. If the
subject invokes these rights, all questioning must stop immediately. However, later the subject may elect to
change his or her mind and discuss the matter.
An amendment to MRE 305(e) and recent case law dictates that law enforcement officials employ a new analysis
in cases where they wish to question subjects who are represented by an attorney. Previously, MRE 305(e) and
the case of U.S. v. McOmber, 1 MJ 380 (C.M.A. 1976), required that if the subject had seen a lawyer and law
enforcement officials wanted to question the subject, notice and reasonable opportunity to attend the interrogation
had to be given to the lawyer before the interrogation could proceed.
Application of the McOmber Rule has now been limited to government initiated interrogations. In U.S. v.
LeMasters, 39 M.J. 490 (C.M.A. 1994), CMA stated that MRE 305(e) is triggered when a person subject to the
Code "intends to question" someone. This language was designed to protect the right to counsel when the police
initiate the interrogation. If the subject initiates the