earlier illegal interrogation has been overcome... Clearly the two statements
are closely related in time, and the only reason that the appellant was
interrogated by the CID was because of the matter he divulged in his first
statement." There was no evidence that the suspect ever acknowledged that his
first statement had not influenced his decision to again incriminate himself
with a second statement. On the contrary, the questioner had reminded him of
the earlier statement, "immediately prior to" the taking of the first
statement:
"The agent's comment to the appellant that he did not want to use
this earlier admission during the on-going interrogation falls far
short of properly informing the appellant that his first admission
could not be used against him, and that he should not feel compelled
to speak as a result of having already 'let the cat out of the bag
by confessing'...
The conclusion is inescapable that these two
statements were so interrelated that exclusion of the first compels
exclusion of the second."
f. The presumptive taint may be overcome by showing that the second
confession was not induced by the first. In one case, the government showed
that the second questioner did not know of the first statement, and did not
refer to it, or rely upon it in taking the later statement. Also, the suspect
stated that he made the second statement because he wanted to "get the matter
off his chest" and "tell the police what had occurred."
This was enough to
show a break between the two statements. U.S. v. Ricks, 2 MJ 99 (CMA, 1977).
The mere passage of time was not enough to do so in U.S. v. Terrell, 5 MJ 726
(ACMR, 1978).
This is, of course, a relevant factor as is whether the same
interrogator is taking both statements. A lapse of nine days was insufficient,
however, where the suspect's "awareness of the criticality of his earlier
confession had not been dissipated," Here, prior to the second questioning, the
second questioner had spoken to the agent who took the first statement. Not
only that, but the suspect knew this.
He, therefore, knew that the second
questioner was aware of his earlier confession. The court found this to be of
"startling impact" and held that the second questioner was not insulated from
the first one.
The second questioner knew of the earlier confession, and
relied upon it in taking the second confession.
Based on these facts, the
court concluded:
"The objective evidence of appellant's subjective thoughts on the
occasion of his second confession leads us to conclude that the fact
and influence of his earlier confession had not been expunged... The
taint of the illegal confession had not been attenuated at the time
of the taking of the (second) confession."
g. In another case, the investigator who took the first statement was
present when the second statement was taken. The accused explained why he made
the second statement: "Well, I figured, you know, I had already told him what
had happened, so if they wanted a statement, they could get it from him... they
had everything they needed."
Under these facts, the court ruled that "the
conclusion is inescapable that the (first) inadmissible statement... led
directly to the second statement, thereby tainting it and
1-75
MP1020
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