f. In U.S. v. Howard, 39 CMR 252 (CMA, 1969), the accused argued that the
use of the "Mutt and Jeff" technique was illegal. This is, of course, the "hot
and cold" approach, using one friendly interrogator, and one who is harsh and
unfriendly.
The court held that using an interrogation technique "stressing
differences in personality and attitude between the agents" is not coercive.
The court also ruled that "when the suspect has been advised of his rights and
has clearly indicated he understands his rights and is willing to answer
questions, it is patently not coercion within the meaning of Article 31 to
advise him of the available evidence against him... it is not coercion within
the meaning of Article 31 for an agent to tell an accused, who has consented to
interrogation, of the probable legal consequences of the information known to
the police."
g. The determination of voluntariness is made on the basis of "totality of
the circumstances," and includes an analysis of the "background and character
of the individual being questioned."
The mere passage of eight hours, for
example, was not coercive per se. The courts, rather, will look at all of the
facts.
This includes "the conduct of the investigators and whether it was
"overbearing." Also, "the fact that a person is easily led or of low mentality
does not per se render any confession by him inadmissible.
In such a
situation, a confession may be coerced, and hence involuntary, with application
of far less coercion than might be necessary to compel the confession of a
strong-willed individual." U.S. v. Jones, 6 MJ 770 (ACMR, 1978).
h. It is clear, then, from the cases just examined that the use of
physical brutality will render a confession inadmissible.
This includes not
only the actual use of force, but its threatened use. Such actions on the part
of the police are viewed as overwhelming the individual's free will, and
depriving him of any capacity to choose what to do. The courts fear that such
confessions are inherently unreliable.
If you point a gun at someone and
threaten to shoot him unless he confesses, you are quite likely to get a
confession from him -- he will confess to the crime under investigation, and
any other crime you want him to confess to. This is not necessarily because
what he is saying is true, but it may be simply because he does not want to be
shot. Such confessions, then, are simply not reliable.
i. Apart from the use of physical brutality, the cases just examined make
it equally clear that confessions obtained through deprivations of an
individual's sleep are equally inadmissible. Again, someone who is deprived of
sleep for a long enough period of time will undoubtedly confess to the
assassination of President Lincoln.
These confessions, then, are equally
unreliable.
Such interrogation techniques are likely to overcome an
individual's free will, and are likely to procure confessions from suspects who
are innocent, as well as guilty.
j. An interesting case is U.S. v. Wheeler, 22 MJ 76 (CMA, 1986). Cert
denied 479 US 827, 93LEd2d 55, 107 SCT 106 (1986). After he was advised of his
rights, the suspect waived them and denied committing the offense.
The
investigator then did the following:
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