this presumed taint.
U.S. v. Pyatt, 46 CMR 84 (CMA, 1972).
Stated
differently, an "illegally obtained statement... presumptively influences" a
later statement "and renders it likewise inadmissible."
U.S. v, Collier, 49
CMR 719 (AFCMR, 1973).
Some of the relevant factors in determining whether
this presumptive taint has been removed are the following:
"...the time interval between the interrogation sessions; whether
the accused acknowledged his prior admissions exerted no influence
on his decision to subsequently confess; whether the confession was
obtained by the same interrogator who obtained the prior
inadmissible statement; whether the interrogator relied upon the
prior admissions in his effort to gain a confession, or conversely,
clearly made the accused understand the prior admissions could not
be used against him; the accused's mental status and emotional
condition; the nature and degree of the improper influence; and of
course the thoroughness and correctness of the warning given
preceding the confession." U.S. v. Weston, 1 MJ 789 (AFCMR, 1976).
c. In Weston, the suspect was not told that his earlier statement could
not be used against him, something which the court termed "an important factor"
and "the preferable procedure."
The suspect knew that the investigator who
took the first (inadmissible) statement had talked with the agent who took the
second statement, PRIOR TO the taking of the second statement. As the court
explained, "it is reasonable to assume the accused was quite aware his freshly
provided admission of guilt was the subject of that conversation."
Although
the suspect had been advised of his Article 31 rights prior to the second
interview, this was not enough. The court was not convinced that the rights
advisement, by itself, severed the "presumptive influence" of the first
statement. The second statement, then, was also inadmissible.
d. Regarding
the
relevant
considerations,
"only
the
strongest
combination... would be sufficient to overcome the presumptive taint which
attaches once the government improperly has secured incriminating statements...
In addition to rewarning the accused, the preferable course in seeking an
additional statement would include advice that prior illegal admissions or
other improperly obtained evidence which incriminated the accused cannot be
used against him."
The courts will look to see if the second statement was
"insulated from the effect of all that went before... was there a break in the
stream of events sufficient to conclude that the giving of the final statement
was uninfluenced by the events which had preceded it?" U.S. v. Seay, 1 MJ 201
(CMA, 1975). In Seay, the court noted that other relevant factors included the
length of time between the two statements, and whether the same interrogator
took both statements.
e. A good illustration of the problem is U.S. v. Nargi, 2 MJ 96 (CMA,
1977).
The first statement was taken without a proper Article 31 warning.
Before the second statement was taken, the questioner told the suspect "to
disregard or forget what had occurred at the counseling session, as he did not
want to take that into consideration in his present questioning." The court
held that the government "has failed in its burden of demonstrating that the
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