11. The court held that there was no evidence that the government had
deliberately and designedly set out to elicit incriminating information from
the suspect. The completion of the personal data card "was only a circumstance
that is normally attendant to arrest and custody... There is no evidence that
this procedure, or any other words or actions on the part of the investigators,
persuaded (the suspect) to confess."
12. Compare these facts with U.S. v. Muldoon, 10 MJ 254 (CMA, 1981).
When
questioned by the CID, the accused said he wanted a lawyer. The interview was
then stopped, and the suspect was placed in a detention cell.
The CID then
interviewed some other suspects, one of whom confessed and implicated the
accused. Armed with this information, the CID agents went to the accused and
told him that his friend had confessed and implicated him.
Following this
revelation, the accused himself confessed. The investigators candidly admitted
that "this was designed to see if he would talk." They admitted that it was
"part of a technique to use in any interview in telling them of the uselessness
of their situation. In other words, that they had been caught."
13. The court agreed with this assessment, and held that the investigators had
used a "time-honored technique to elicit a statement -- namely, informing the
suspect that he had been implicated by someone else. Here, the agents candidly
admitted that (it) was one of their interrogation techniques." The conviction
was reversed. Indeed, "when conversation is designed to elicit a response from
a suspect, it is interrogation, regardless of the subtlety of the approach."
U.S. v. Borodzik, 44 CMR 149 (CMA, 1971).
14. In another case, when the suspect said that he did not want to be
questioned, the CID agent returned him to his cell. About 9 hours later, the
agent returned, and told the suspect that another participant in the robbery
had given the police a statement that implicated the suspect.
Again, such
police conduct was deemed to be a form of interrogation. U.S. v. Hill, 5 MJ
114 (CMA, 1978).
15. An interesting application of this rule is U.S. v. Dowell, 10 MJ 36 (CMA,
1980). There, the accused was in pretrial confinement, and was visited by his
commander. The commander told the accused of an additional charge against him.
The court concluded that it was reasonably foreseeable that this would provoke
a response from the subject.
The actions of the commander, then, were the
"functional equivalent" of interrogation.
As the court explained, it was
"human nature... that one who has been notified of serious charges against him
will feel a need to say something in response to those charges.
The
foreseeability of such a reaction is all the greater when the accused is in
confinement and the charges against him are being presented to him by his
commander." The court then concluded:
"When one takes action which foreseeably will induce the making of a
statement and a statement does result, we conclude that the
statement had been "obtained" for purposes of Article 31... We need
not question the good faith of CPT Black, who had a specific duty to
inform the accused of the charges against him... However, since the
acts involved in performing that
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