Motion To Suppress Involuntary Statements DEFENDING MILITARY MEMBERS WORLDWIDE Contact Us!


The Fifth Amendment to the Constitution prohibits any person from "being compelled in any criminal case to be a witness against himself." Article 31(d), UCMJ, prohibits the admission of statements obtained from an accused "through the use of coercion, unlawful influence, or unlawful inducement." Thus, an accused's confession must be voluntary to be admitted into evidence. United States v. Bubonics, 45 M.J. 93 (CAAF 1996), See Also United States v. Bresnahan, 62 M.J. 137 (CAAF 2005).

Under M.R.E. 304(e), the burden is on the Government to establish the admissibility of the evidence. The Military Judge must then find by a preponderance of the evidence that the statement made by the accused was made voluntarily under the totality of the circumstances. United States v. Bubonics, 45 M.J. 93 (CAAF 1996).

In Bubonics, the Court of Appeals for the Armed Forces affirmed the lower court’s decision that a confession is inadmissible when a statement which could be construed to be a threat to prosecute or hold an accused in custody unless he confessed is made during an interrogation. In addition, the Court held that it must always look to the totality of the circumstances to determine if an accused’s confession was the product of coercion, unlawful influence or unlawful inducement.

In both the cases of United States v. Bresnahan, 62 M.J. 137 and United States v. Bubonics, 45 M.J. 93 (CAAF 1996), the Court of Appeals for the Armed Forces confirmed that when inquiring into the voluntariness of a confession, scrutiny should focus on whether it was the product of an essentially free and unconstrained choice by the appellant, bearing in mind that if his will was overborne and his capacity for self-determination was critically impaired, use of his confession would offend due process. In those case, CAAF held that in making this determination, a court must consider the totality of the circumstances recognizing that the significance of every factor need not be considered equally, but rather given a degree of importance in accordance with the circumstances and the state of mind of the appellant. Specifically, some of the factors that must be considered are the appellant's age, his mental condition, his education and intelligence, the character and conditions of the detention, and the manner of the interrogation, such as its length, and the use of force, threats, promises, or deceptions. See Bresnahan, 62 M.J. at 139; Bubonics, 45 M.J. at 94-96.

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    For the better part of the last decade, Mr. Conway has become a nationally recognized resource on military justice. Daniel Conway is a former Marine staff sergeant and captain. He is a proud graduate of the University of Texas at San Antonio and University of New Hampshire School of Law. Mr. Conway is recently a former President of the New Hampshire Bar Association Military Law Section and a current member of the DC Bar. Mr. Conway has also written a book on Military Crimes and Defenses that is near publication with a major ...

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