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Ask the Lawyer: Many factors determine whether coercion is used in confessions

Apr. 25, 2014 - 10:38AM   |  
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Q. Can military interrogators pressure an accused service member into confessing to a crime by saying bad things will happen to his family if he doesn’t come clean?

A. Article 31 of the Uniform Code of Military Justice prohibits the government from compelling service members to make incriminating statements against themselves. But the government can violate this prohibition by employing coercion, unlawful influence or unlawful inducement to secure a confession.

It’s not uncommon for interrogators to pull on the heartstrings of accused service members by warning this or that may happen to their spouse or children if they don’t cooperate. Depending on the circumstances, such threats could render confessions involuntary — making them inadmissible at court-martial.

But the mere invocation of the accused’s family members, and the consequences that could befall them, may not automatically trigger an Article 31 violation.

For example, in U.S. v. Timothy J. Ellis Sr. (2001), the Navy-Marine Corps Court of Criminal Appeals noted that when an accused is “merely apprised” of how his acknowledgment of child sexual abuse could get the ball rolling on a treatment and therapy plan for his family, his confession could be deemed voluntary.

Such a comment would not constitute an “improper threat, inducement, or promise.” In contrast, the voluntary nature of a confession could be cast in doubt by an “investigator’s threat to have civilian police question the accused’s wife ... even though the accused had been properly warned” of his right against self-incrimination,” the court noted.

The proper analysis of whether a confession is voluntary must take into account the totality of the circumstances, so it’s difficult to point to any one particular comment by investigators as rendering a confession involuntary.

Ellis involved a Navy aviation electronics technician who was convicted at general court-martial of involuntary manslaughter and assault consummated by battery of a child under 16 years old in violation of Articles 119 and 128.

He appealed, claiming law enforcement authorities unlawfully coerced his confession to beating his 2½-year-old son by stating there was probable cause to arrest his wife and, if that happened, their other children would be placed in foster care.

The court acknowledged that these comments “may have implied a threat,” but said such a threat was “relatively mild.” It concluded the confession was voluntary, stating “this is not an instance of a hapless accused who simply capitulated or acquiesced to the overbearing demands of aggressive law enforcement agents.”

Troops accused of a crime should not allow themselves to fall victim to interrogators’ direct or indirect threats against their family members.

They can bring such interrogations to a halt by clearly and unequivocally asserting their Article 31 right to counsel.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com.

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