Section 400.620 Confessions; Admissions; Statements

Section 400.620  Confessions; Admissions; Statements

a)         Definitions.

As used in this Section:

1)         "Confession"

means an acknowledgment of guilt.

2)         "Admission"

means a self-incriminating statement falling short of an acknowledgment of

guilt, even if it was intended by its maker to be exculpatory.

3)         "Involuntary"

means "involuntary" if it is obtained in violation of the

self-incrimination privilege or due process clause of the Fifth Amendment to

the U.S. Constitution or Code Section 31, or through the use of coercion,

unlawful influence or unlawful inducement.

b)         General

Rule.  Except as provided in subsection (c), an involuntary statement or any

derivative evidence from an involuntary statement may not be received in

evidence against an accused who made the statement if the accused makes a

timely motion to suppress or an objection to the evidence under this Section.

c)         Exceptions

1)         If

the statement is involuntary only in terms of noncompliance with the

requirements of Section 400.625(c) or (f), or the requirements concerning

counsel under Section 400.610(b) and Section 400.625(d) and (e), this Section

does not prohibit use of the statement to impeach by contradiction in the court

testimony of the accused or the use of that statement in a later prosecution

against the accused for perjury, false swearing, or the making of a false

official statement.

2)         Evidence

that was obtained as a result of an involuntary statement may be used when the

evidence would have been obtained even if the involuntary statement had not

been made.

3)         Derivative

Evidence.  Evidence that is challenged under this subsection (c) as derivative

evidence may be admitted against the accused if the military judge finds by a

preponderance of the evidence that the statement was made voluntarily, that the

evidence was not obtained by use of the statement, or that the evidence would

have been obtained even if the statement had not been made

3)         Derivative

Evidence.  Evidence that is challenged under this subsection (c) as derivative

evidence may be admitted against the accused if the military judge finds by a

preponderance of the evidence that the statement was made voluntarily, that the

evidence was not obtained by use of the statement, or that the evidence would

have been obtained even if the statement had not been made.

d)         Procedure

1)         Disclosure.

Prior to arraignment, the prosecution shall disclose to the defense the

contents of all statements, oral or written, made by the accused that are

relevant to the case, known to the trial counsel, and within the control of the

armed forces.

2)         Motions

and Objections

A)        Motions

to suppress or objections under this subsection (d)(2) or Section 400.615 or

400.625 to statements that have been disclosed shall be made by the defense

prior to submission of a plea.  In the absence of such motion or objection, the

defense may not raise the issue at a later time except as permitted by the

military judge for good cause shown.  Failure to so move or object constitutes

a waiver of the objection.

B)        If the

prosecution intends to offer against the accused a statement made by the

accused that was not disclosed prior to arraignment, the prosecution shall

provide timely notice to the military judge and to counsel for the accused.  The

defense may enter an objection at that time and the military judge may make

such orders as are required in the interests of justice.

C)        If

evidence is disclosed as derivative evidence under this subsection (d) prior to

arraignment, any motion to suppress or objection under this subsection (d) or Section

400.615 or 400.625 shall be made in accordance with the procedure for

challenging a statement under subsection (d)(2)(A).  If that evidence has not

been so disclosed prior to arraignment, the requirements of subsection (d)(2)(B)

apply.

3)         Specificity

vative evidence under this subsection (d) prior to

arraignment, any motion to suppress or objection under this subsection (d) or Section

400.615 or 400.625 shall be made in accordance with the procedure for

challenging a statement under subsection (d)(2)(A).  If that evidence has not

been so disclosed prior to arraignment, the requirements of subsection (d)(2)(B)

apply.

3)         Specificity.

The military judge may require the defense to specify the grounds upon which

the defense moves to suppress or object to evidence.  If defense counsel,

despite the exercise of due diligence, has been unable to interview adequately

those persons involved in the taking of a statement, the military judge may

make any order required in the interests of justice, including authorization

for the defense to make a general motion to suppress or general objection.

4)         Rulings.

A motion to suppress or an objection to evidence made prior to plea shall be ruled

upon prior to plea unless the military judge, for good cause, orders that it be

deferred for determination at trial, but no such determination shall be

deferred if a party's right to appeal the ruling is affected adversely.  When

factual issues are involved in ruling upon the motion or objection, the

military judge shall state essential findings of fact on the record.

5)         Effect

of Guilty Plea.  Except as otherwise expressly provided in Code Section 45, a

plea of guilty to an offense that results in a finding of guilty waives all

privileges against self-incrimination and all motions and objections under this

subsection (d) with respect to that offense, regardless of whether raised prior

to plea.

e)         Burden

of Proof.  When an appropriate motion or objection has been made by the defense

under subsection (d)(2), the prosecution has the burden of establishing the

admissibility of the evidence

of guilty waives all

privileges against self-incrimination and all motions and objections under this

subsection (d) with respect to that offense, regardless of whether raised prior

to plea.

e)         Burden

of Proof.  When an appropriate motion or objection has been made by the defense

under subsection (d)(2), the prosecution has the burden of establishing the

admissibility of the evidence.  When a specific motion or objection has been

required under subsection (d)(3), the burden on the prosecution extends only to

the grounds upon which the defense moved to suppress or object to the evidence.

1)         In General.

The military judge must find by a preponderance of the evidence that a

statement by the accused was made voluntarily before it may be received into

evidence.  When trial is by a special court-martial without a military judge, a

determination by the president of the court that a statement was made

voluntarily is subject to objection by any member of the court.  When such an objection

is made, it shall be resolved by a majority vote of the members.  The

court-martial shall be closed, and the members shall vote orally, beginning

with the member junior in rank.

2)         Weight

of the Evidence.  If a statement is admitted into evidence, the military judge

shall permit the defense to present relevant evidence with respect to the

voluntariness of the statement and shall instruct the members to give such

weight to the statement as it deserves under all the circumstances.  When trial

is by military judge without members, the military judge shall determine the

appropriate weight to give the statement.

3)         Derivative

Evidence

military judge

shall permit the defense to present relevant evidence with respect to the

voluntariness of the statement and shall instruct the members to give such

weight to the statement as it deserves under all the circumstances.  When trial

is by military judge without members, the military judge shall determine the

appropriate weight to give the statement.

3)         Derivative

Evidence.  Evidence that is challenged under this subsection (e) as derivative

evidence may be admitted against the accused if the military judge finds by a

preponderance of the evidence that the statement was made voluntarily, that the

evidence was not obtained by use of the statement, or that the evidence would

have been obtained even if the statement had not been made.

f)         Defense

Evidence.  The defense may present evidence relevant to the admissibility of

evidence to which there has been an objection or motion to suppress under this Section.

An accused may testify for the limited purpose of denying that the accused

made the statement or that the statement was made voluntarily.  Prior to the

introduction of that testimony by the accused, the defense shall inform the

military judge that the testimony is offered under this subsection (f).  When

the accused testifies under this subsection (f), the accused may be

cross-examined only as to the matter on which he or she testifies.  Nothing

said by the accused on either direct or cross-examination may be used against

the accused for any purpose other than in a prosecution for perjury, false swearing,

or making of a false official statement.

g)         Corroboration.

An admission or a confession of the accused may be considered as evidence

against the accused on the question of guilt or innocence only if independent

evidence, either direct or circumstantial, has been introduced that

corroborates the essential facts admitted to justify sufficiently an inference

of their truth

se swearing,

or making of a false official statement.

g)         Corroboration.

An admission or a confession of the accused may be considered as evidence

against the accused on the question of guilt or innocence only if independent

evidence, either direct or circumstantial, has been introduced that

corroborates the essential facts admitted to justify sufficiently an inference

of their truth.  Other uncorroborated confessions or admissions of the accused

that would themselves require corroboration may not be used to supply this

independent evidence.  If the independent evidence raises an inference of the

truth of some but not all of the essential facts admitted, the confession or

admission may be considered as evidence against the accused only with respect

to those essential facts stated in the confession or admission that are

corroborated by the independent evidence.  Corroboration is not required for a

statement made by the accused before the court by which the accused is being

tried, for statements made prior to or contemporaneously with the act, or for

statements offered under a rule of evidence other than that pertaining to the

admissibility of admissions or confessions.

1)         Quantum

of Evidence Needed.  The independent evidence necessary to establish

corroboration need not be sufficient of itself to establish beyond a reasonable

doubt the truth of facts stated in the admission or confession.  The

independent evidence need raise only an inference of the truth of the essential

facts admitted.  The amount and type of evidence introduced as corroboration is

a factor to be considered by the trier of fact in determining the weight, if

any, to be given to the admission or confession.

2)         Procedure.

The military judge alone shall determine when adequate evidence of corroboration

has been received. Corroborating evidence usually is to be introduced before

the admission or confession is introduced, but the military judge may admit

evidence subject to later corroboration

y the trier of fact in determining the weight, if

any, to be given to the admission or confession.

2)         Procedure.

The military judge alone shall determine when adequate evidence of corroboration

has been received. Corroborating evidence usually is to be introduced before

the admission or confession is introduced, but the military judge may admit

evidence subject to later corroboration.

h)         Miscellaneous

1)         Degrading

Questions.  No person may be compelled to make a statement or produce evidence

before any military tribunal if the statement or evidence is not material to

the issue and may tend to degrade that person.

2)         Oral Statements.

A voluntary oral confession or admission of the accused may be proved by the

testimony of anyone who heard the accused make it, even if it was reduced to

writing and the writing cannot be made available.

3)         Statements

by One of Several Accused.  When 2 or more accused are tried at the same trial,

evidence of a statement made by one of them which is admissible only against

him or her or only against some but not all of the accused may not be received

in evidence unless all references inculpating an accused against whom the

statement is inadmissible are deleted effectively or the maker of the statement

is subject to cross-examination. (Il. Mil. R. Evid. 306)

4)         Completeness.

If only part of an alleged admission or confession is introduced against the

accused, the defense, by cross-examination or otherwise, may introduce the

remaining portions of the statement.

5)         Certain

Admissions by Silence.  A person's failure to deny an accusation of wrongdoing

concerning an offense for which, at the time of the alleged failure, the person

was under official investigation or was in confinement, arrest or custody does

not support an inference of an admission of the truth of the accusation.

6)         Refusal

to Obey Order to Submit Body Substance

tement.

5)         Certain

Admissions by Silence.  A person's failure to deny an accusation of wrongdoing

concerning an offense for which, at the time of the alleged failure, the person

was under official investigation or was in confinement, arrest or custody does

not support an inference of an admission of the truth of the accusation.

6)         Refusal

to Obey Order to Submit Body Substance.  If an accused refuses a lawful order

to submit for chemical analysis a sample of his or her blood, breath, urine or

other body substance, evidence of that refusal may be admitted into evidence

on:

A)        A

charge of violating an order to submit that sample; or

B)        Any

other charge on which the results of the chemical analysis would have been

admissible. (Il. Mil. R. Evid. 304)