an eye to determining whether this was an untrustworthy confession extorted from the accused or whether it was one freely supplied by him and therefore trustworthy. Furthermore, the law officer advised the court that the final determination of the weight of the evidence and the credibility of the witnesses rested solely upon its members, and that they were to disregard any sort of comment or statement by him which might seem to indicate a view of the accused's guilt or innocence. Within the thrust of this instruction, there was present the connotation that, although he had expressed the implicit opinion that the accused's statement was voluntary, the court was to disregard this view. To the extent that clarification of the law officer's advice was desirable, the defense counsel was under a duty to request this action. Defense counsel in this case not only failed to object to the law officer's instructions, but expressly declined to take advantage of an invitation to comment on the charge as given. Under these circumstances, the failure of the defense counsel to complain is fatal to an assertion of prejudice in the instructions given. (Citing U. S. v. Johnson (No. 2363), 3 USCMA 447, 13 CMR 3; U. S. v. St. Pierre (No. 1808) 3 USCMA 33, 11 CMR 33; U. S. v. Long (No. 529), 2 USCMA 45, 6 CMR 45; U. S. v. Jenkins (No. 238), 1 USCMA 329, 3 CMR 63; Hawkins v. U. S., 158 F2d 652, cert den 331 US 830, 91 Led 1844, 67 S Ct 1347.) [Latimer, J., concurring in the result.] Held also: When involuntariness of a confession is an issue, it will generally suffice to advise court members to this effect: "Gentlemen, you have heard evidence bearing on the voluntariness of the statement I have admitted in evidence. It is recognized that involuntary statements are often untrustworthy and unreliable. Therefore, the voluntariness of the statement before you here constitutes a matter you should consider in determining what weight, if any, you are to give to that statement. In deciding this latter question, you should be affected in no way by the circumstance that I have permitted this statement to be received in evidence." If a failure to warn, in addition to involuntariness, is in issue, the law officer may properly add: "The circumstances surrounding the giving, or the failure to give, a warning to the accused of his right to remain silent are among those to be considered in determining whether the statement I have submitted in evidence was made voluntarily or the reverse." United States v. Dykes (No. 4940), 5 USCMA 735, 19 CMR 31.

[See 20 Am Jur, Evidence § 533; 53 Am Jur, Trial §§ 734, 735.] See ACM S-9711, Holbrook, supra § 127.17.

§ 129. Hope of Benefit or Reward; Promise of Immunity

§ 129.1. Generally.

After his apprehension on suspicion of larceny, the accused was interviewed by an OSI agent and warned of his rights. Approximately three days later, his first sergeant interrogated him further and in the course of this interrogation stated if he told the truth he would attempt to use his influence with the squadron commander to have the charges handled at squadron level. The first sergeant

testified that he avoided any mention of a possible trial by courtmartial and that he expressly conditioned all promises of assistance on a final determination by the squadron commander. After the accused had decided to make a statement, an OSI agent was called to conclude the investigation and he took the accused to the OSI office where he was again advised of his rights and where he subsequently executed a statement which was introduced at his trial. Held: In the absence of defense evidence indicating to some extent the effect of the first sergeant's promise upon the accused's mental processes, the court-martial's findings that the confession was not unlawfully induced is supported by substantial evidence. The first sergeant's promise to make use of his influence with the squadron commander, in the absence of evidence to the contrary, cannot be said to have constituted a promise of immunity, clemency, or substantial benefit within the meaning of the Manual's language condemnatory of the use of such inducements. Also, assuming that an inducement had been shown as a matter of law, the trial forum might reasonably have found that it was not an unlawful one since the first sergeant's promise to the accused contained no assertion that he possessed discretion to prevent the accused's trial by court-martial, to impose only company punishment, or to exercise clemency of any nature. Instead, the accused was explicitly reminded that the final determination lay solely with the squadron commander. United States v. Howell (No. 5989), 5 USCMA 664, 18 CMR 288, affirming ACM 9179, Howell, 17 CMR 855.

Promise to attempt to have offense handled at battery level as insufficient inducement to render a confession involuntary, see United States v. Johnson, infra § 133.7.

§ 131.1. Generally.

§ 131. Use of Force or Fear

At the trial of the accused for stealing a sum of money the victim testified that he questioned the accused and he denied taking the money, that he then slapped the accused twice with his open hand and that a few minutes later the accused gave him some money and said he was returning part of the money taken. Sometime after the accused admitted the theft to the victim he was questioned by an officer and he again admitted it. After the victim had testified for the government he was recalled by the defense to establish a defense contention that the slapping carried over and coerced the confession later made to the officer. At this time the victim repeated and enlarged upon his former testimony. The accused testified in his own behalf and admitted he took the victim's wallet and he related the circumstances under which he returned part of the money. He did not assert that the abusive treatment coerced him to talk and he sought to state his reasons for taking the money and to impress upon the court that he returned it. A board of review held that the accused's admission was inadmissible because it was coerced by the act of the victim. The board also concluded that the error in admitting the admission denied the accused due process of law so that

his conviction had to be reversed notwithstanding other compelling evidence of guilt.

Held that:

— accepting the board of review's holding that the slapping was sufficient coercion to render the incriminatory admission involuntary, the admission of the testimony was error since it was contrary to the provisions against compulsory self-incrimination. (Citing UCMJ, Art 31(a) and (d); U. S. v. Hernandez (No. 4105), 4 USCMA 465, 16 CMR 39.)

the statement was not inadmissible because of the failure of the victim to warn the accused of his rights under UCMJ, Art 31(b), since the cited provision is applicable only to statements made by an accused, or one suspected of an offense, during the course of an investigation being conducted with some color of officiality. In the instant case the victim acted solely for his own benefit and without official sanction. (See U. S. v. Gibson (No. 1474), 3 USCMA 746, 14 CMR 164; U. S. v. Josey (No. 2808), 3 USCMA 767, 14 CMR 185; cf. U. S. v. Wilson (No. 647), 2 USCMA 248, 8 CMR 48.)

with respect to whether the admission of a coerced statement requires reversal regardless of other evidence, there is a distinction between cases involving coercion by public officials and those involving coercion by private individuals. Admission of a statement coerced by a public official will normally require reversal regardless of other evidence of guilt. However, admission of a statement coerced by a private individual acting solely for his personal benefit does not ordinarily require summary reversal. In such cases, the error should be tested in terms of its prejudicial effect and if, when the proceedings are considered in their entirety, the error could not possibly have influenced either the findings or sentence in any degree detrimental to the accused, they should be affirmed. (Citing Lisenba v. California, 314 US 219, 86 L ed 166, 62 S Ct 280; Ashcraft v. Tennessee, 322 US 143, 88 L ed 1192, 64 S Ct 921; Haley v. Ohio, 332 US 596, 92 L ed 224, 68 S Ct 302. Distinguishing CM 362110, Branch, 10 CMR 417.) Under the circumstances herein the accused was not denied due process of law because he was forced to incriminate himself. Fundamental as the right against self-incrimination is, it is subject to being waived and an accused who judicially admits his guilt of an offense by voluntarily testifying to facts which otherwise might not have been admissible cannot complain that he had been unjustly dealt with. (Citing U. S. v. Collier (No. 467), 1 USCMA 575, 5 CMR 3.) Also, the testimony of the victim was admissible for the purpose of establishing the defense contention that the slapping coerced the later confession but its voluntary re-introduction by the defense to assist in establishing a defense theory bars any contention that it was error to have the court-martial hear it. [Brosman, J., concurring. Quinn, C. J., concurring in the results states that reasons may be advanced against a conclusion that there is a distinction between a confession forced from an accused by a private person and one extorted from him by a person acting on behalf of the Government

but that a judicial admission by the accused in his own testimony precluded raising on appeal any claim of error.] United States v. Trojanowski (No. 4688), 5 USCMA 305, 17 CMR 305, reversing CM 369937, Trojanowski, 15 CMR 484.

Mentioning necessity of holding up impending discharge as not sufficient threat to extract involuntary confession, see CGCMS 20121, Hoisington, infra § 133.

§ 133. Caution; Failure to Warn of Rights

§ 133.1. Generally.

See 20 Am Jur, Evidence § 505.

During the testimony of the OSI agent who explained the accused's rights under UCMJ, Art 31, to him, the agent was asked if the accused could refuse to answer any questions and he replied that it was the practice of the OSI to contact the man's immediate superior officer if they thought an answer should be made and if a direct order was involved it would have to come from the superior officer. He was then asked if he thought the commander could order a man to answer a question and he replied that he could if it did not tend to degrade or incriminate the accused. Held: Any misunderstanding of the accused's rights on the part of the agent did not operate to the detriment of the accused since the misunderstanding, if any, concerned the authority of a commander or superior officer to order an accused person to answer questions and it affirmatively appeared in the record that the accused's commander was not called upon to order the accused to answer any question nor did the agent use such procedure as a threat to force the accused to answer any questions. ACM 8900, Radford (1954) 17 CMR 595.

On the trial of the accused for murder, his commanding officer testified that he questioned the accused concerning the weapon and as a result thereof the accused produced it from a closet shelf. The commanding officer's testimony as to the accused's production of the weapon was given while testifying for the defense. The officer stated he did not warn the accused of his rights as required by UCMJ, Art 31, but he had been assured by another officer that the accused had been advised of his rights. The record also established that a certain sergeant had made an effort to properly warn the accused and asked him if he understood his rights but the accused paid no attention to him. This sergeant testified that this took place in the presence of the accused's commanding officer. Held: The accused's recovery of the firearm amounted to identification of it and revealed the information that he had secluded it. It was therefore conduct on his part relevant to the question of guilt or innocence and constituted an admission by him to the same effect that words might have had this effect. It was, in effect, a self-incriminatory statement but only an admission, as distinguished from a confession, since it did not amount to a complete acknowledgment of guilt. (Citing Wigmore, Evidence, 3rd ed, secs. 1052, 1060-62; U. S. v. Fair and Boyce (Nos. 908 and 1188), 2 USCMA

521, 10 CMR 19, 24; MCM, 1951, par 140a.) Since the record reveals an avoidance by the law officer, and trial counsel, as well as the defense counsel, of any oral statements made by the accused to his commanding officer, it appears that all the parties to the trial acted upon the assumption that the accused's recovery of the weapon did not amount to a statement within the purview of Art 31. Therefore, the admission of the commanding officer's testimony cannot be held to be non-prejudicial error on the ground that the evidence was used by, rather than against the accused, or upon the related theory that failure to object at trial precludes consideration of the error. (Citing U. S. v. Fisher (No. 3318), 4 USCMA 152, 15 CMR 152 and other cases.) Regardless of the Manual rule that an admission is admissible in evidence without a preliminary showing that it was voluntarily made and that the accused had been warned of his rights if there is no indication that it was involuntarily made, if it is clearly shown that an admission is obtained in violation of UCMJ, Art 31, it is inadmissible against an accused over his objection. (Citing U. S. v. Taylor (No. 3588), 5 USCMA 178, 17 CMR 178; U. S. v. Josey (No. 2808), 3 USCMA 767, 14 CMR 185; MCM, 1951, par 140a, pp 249, 250.) However, there is no basis for any contention that the consideration by the court of the evidence concerning the accused's recovery of the weapon amounted to error at all. On the one hand, the evidence was an admission only, and there is no indication or suspicion that the statement embodying it was involuntarily made. It follows that there was no requirement for an affirmative showing of voluntariness and forewarning. On the other hand, with respect to a violation of UCMJ, Art 31, the record shows that an attempt was made by the sergeant to advise the accused. If the sergeant's advice was sufficient as to any interrogation he may have conducted it would have been a sufficient compliance with Art 31 as to the commanding officer since it appears the latter was present when the advice was rendered. There was an indication that accused may not have understood the advice, but the record does not establish as a fact that he did not understand it. (Citing ACM 5570, Lindner, 7 CMR 650. Distinguishing U. S. v. Josey (No. 2808), 3 USCMA 767, 14 CMR 185 and U. S. v. Taylor (No. 3588), 5 USCMA 178, 17 CMR 178.) ACM 9381, McKay (1954) 18 CMR 629. In support of an allegation of larceny of a pistol, a CID agent testified that he had gone to the home of the accused in the company of a civilian police officer and another agent and requested the accused to produce the pistol in question, whereupon the accused opened a drawer, reached underneath, removed the pistol, and handed it to the officers. On cross-examination the witness testified that at the time he went to the accused's home he was suspicious of how the accused obtained the pistol and that no one in the party had informed the accused of his rights under UCMJ, Art 31. Held: The accused's conduct in surrendering the pistol from its hiding place was obviously an admission of conscious possession of the pistol. Also, conduct equivalent to an admission has been held to constitute a "statement" within the meaning of Art 31. (Citing U. S.