requiring its exclusion from evidence."
U.S. v. Johnson, 6 MJ 716 (AFCMR,
1978).
The issue, again, is whether the second confession is "derived from
illegal government activity." U.S. v. Butner, 15 MJ 139 (CMA, 1983).
h. In U.S. v. Angevine, 16 MJ 519 (ACMR, 1985), the government followed
the "preferable course" of advising the suspect that his earlier statement was
inadmissible against him; i.e., a "cleansing statement" was used. This is also
sometimes referred to as a "curative warning."
Other relevant factors,
according to the court, were the time lapse, the change of investigators, and
the different locations of the two interviews. Remember, the earlier violation
raises a presumption that the subsequent statement is tainted and is, likewise,
inadmissible. U.S. v. Kruempelman, 21 MJ 225 (ACMR, 1985).
PART R - LINE-UPS
1. General - the right to counsel. A line-up is regarded as unreliable if it
"is so suggestive as to create a substantial likelihood of misidentification"
(MRE 321(b)(2)A). A suspect in the military has a right to counsel at a line-
up, but only if the line-up is conducted "after preferral of charges or
imposition of pretrial restraint... for the offense under investigation" (MRE
321(b)(2)A).
If the suspect requests counsel (assuming he is entitled to
such), an attorney "shall be provided... before the line-up may proceed." The
suspect may waive this right, if such waiver is "freely, knowingly, and
intelligently made."
a. This limited right to counsel at a line-up should not be confused with
Article 31/Miranda rights.
As we previously saw, compelling a suspect to
appear in a line-up does not involve "testimonial communication."
The Fifth
Amendment protects an accused's "communications," and not compulsion "which
makes a suspect or accused the source of real or physical evidence."
Such
things as fingerprints, photography, etc., are not "testimonial." The right to
counsel at a line-up is due to the fact that, under the conditions noted above,
the line-up is considered to be a critical stage of the proceedings against the
accused.
The right to counsel at a line-up, then, comes from his Sixth
Amendment right to effective assistance of counsel at all critical stages of
the criminal proceeding.
b. The attorney's presence "does not invest him with any authority to
prevent, interfere with, or control the line-up procedure.
He may offer
suggestions to the individual in charge of the line-up, but that individual is
not required to acquiesce in-the desires or demands of counsel for the
suspect."
The attorney acts as an observer "to assure that the suspect's
interests will be protected." U.S. v. Webster, 40 CMR 627 (ABR, 1968).
2. Photographic line-ups.
There is no right to counsel here.
The accused
himself has no right to be present. The reason is that "no possibility arises
that the accused might be misled by his lack of familiarity with the law or
overpowered by his professional adversary."
In the case of photographs, the
defense can later reconstruct what occurred. There is no more right to counsel
here than there is when the prosecutor is questioning witnesses in his office.
U.S. v. Ash, 413 US 300, 37 L.Ed.2d 619, 93 SCt 2568 (1973). The
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