confessions that will be thrown out of court. Based on its purpose, however,
the application of the exclusionary rule will depend on whether or not such
would further the goal of deterring the police from breaking the law. Illinois
v. Krull, 480 US 340, 94LEd2d 364, 107 SCt 1160 (1987).
a. One exception to the exclusionary rule occurs when the connection
between the violation of the suspect's rights against self incrimination and
the evidence acquired thereafter is attenuated or weak.
This is the
"attenuation of the taint" exception to the exclusionary rule.
In U.S. v.
Collier, 1 MJ 357 (CMA. 1976), the accused was a suspect in the murder of two
people and the attempted murder of three others when he entered the emergency
room of the base hospital and opened fire with a rifle. He was questioned on
24 June, the day of the offenses, without having been advised of his Article
31, UCMJ, and Miranda rights.
The Court of Military Appeals held the OSI
agents erroneously did not consider him to be a suspect prior to questioning
him.
Therefore, any further evidence acquired by the OSI based on the
statement the accused made is presumed to be tainted and subject to the
exclusionary rule, unless that taint has been attenuated or weakened. The next
day OSI agents reinitiated an interrogation of the accused who had been
released from their custody the day before. This time after the agents did a
complete rights advisement, the accused voluntarily waived his rights.
The
agents did not mention the statement the accused made the day before, nor did
they give any "cleansing" warning.
During the subsequent interrogation, the
accused admitted for the first time that he had purchased ammunition from the
Base Exchange and that he owned a .22 caliber rifle. The agents asked him if
he would give them the rifle so they could "eliminate" him as a suspect. He
agreed. The agents accompanied him to his quarters on base. While they waited
inside the quarters, the accused went by himself to a back bedroom where he
picked up his loaded rifle.
Then he gave this rifle to the agents.
A
ballistics examination of the rifle revealed it had been used to kill one of
the victims.
The issue at trial and on appeal was the admissibility of the
accused's statements, the rifle, and the ballistics examination results. The
Court of Military Appeals found that on 24 June the accused never mentioned the
rifle during his unwarned, illegally obtained statement.
Also, the accused
testified at his trial that he was not "upset" about the statement taken on 24
June.
Further, he testified he "voluntarily" talked about the rifle on 25
June. The Court held that the statement made on 25 June, the rifle the agents
seized, and the ballistics examination done thereon were not the result of the
agent's exploitation of the accused's illegally obtained statement of 24 June.
Therefore, any taint created on 24 June was attenuated and weakened so that the
25 June statement, the rifle, and the test thereon were not the "fruits of the
poisoned tree."
b. Another exception is when there is an independent source for the
evidence.
In other words, the evidence is not really the product of the
unlawful confession. In U.S. v. Atkins, 46 CMR 244 (CMA, 1973), the accused
had been improperly questioned without a rights advisement. His responses to
this improper questioning were the direct cause of his subsequent apprehension.
The apprehension and the search that incident thereto were found to be the
direct result of the unlawful interrogation. Remember, "evidence obtained in
violation of an accused's right to remain silent... is
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