charge and re-enlistment were practically simultaneous, a hiatus in the enlistments was prevented."

IN

N THE TOTH case (350 US 11) the Supreme Court struck down Article 3 (a) of the Code as being unconstitutional. Article 3(a) had attempted to confer military jurisdiction to try former members of the military who had severed all relations from the Armed Forces. The Supreme Court held that individuals stationed on foreign soil who had severed all associations with the military and who had returned to the United States cannot be subjected to trial by courts-martial. In United States v. Burney, 6 USCMA 776, 21 CMR 98, the accused contended that the Toth case had established the rule that no civilian outside the territorial limits of the United States could be tried by court-martial. Burney was a civilian employee of the Philo Corporation accompanying the Air Force outside the United States. The Court of Military Appeals held that Article 2 (11) • was a reasonable and necessary exercise of congressional authority to make rules for the government and regulation of the Armed Forces. The Court pointed out that one of the primary purposes of the Federal Constitution was to assure basic constitutional guarantees of due process to each citizen, and that a courtmartial under the Uniform Code of Military Justice would in fact guarantee to persons accompanying the Armed Forces overseas more elements of due process than any practical alternative which could be devised to use in its place.

4

In a most recent case limiting the jurisdiction of courts-martial, the Court of Military Appeals, in United States v. French, 10 USCMA 171, 27 CMR 245, held that the military may try capital cases only where specifically authorized by statute. Thus the military may not charge a capital violation of the Federal Criminal Code under Article 134 or 133 of the Uniform Code of Military Justice, nor may these offenses be tried by court-martial by treating them as noncapital. The opinion appears to limit this restriction, however, to the peacetime trial of such offenses in the United States.

A-Stipulations

5

EVIDENCE

According to an early Court of Military Appeals decision a defense counsel may stipulate to all or part of 2. United States v. Solinsky, 2 USCMA 153, 7 CMR 29. But when a youth under seventeen years of age enlists, his age prevents him from acquiring a military status. United States v. Blanton, 7 USCMA 664, 23 CMR 128, and United States v. Taylor, 8 USCMA 24, 23 CMR 248.

3. Subject to the provisions of Article 43, any person charged with having committed, while in a status in which he was subject to this code, an offense against this code punishable by confinement of five years or more and for which the person cannot be tried in courts of the United States or any state or territory thereof or of the District of Columbia, shall not be relieved from amenability to trial by courts-martial by reason of the termination of said status.

4. Subject to the provisions of any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States and without the following territories: That part of Alaska east of longtitude one hundred and seventy-two degrees west, the Canal Zone, the main group of the Hawaiian Islands, Puerto Rico, and the Virgin Islands.

the prosecution's case even without the consent of the accused because of the implied authority that he has to act for the accused in procedural matters. However, whether or not that case still represents the present Court's thinking is questionable. Certainly in a special court-martial "not guilty" case, where the accused is not represented by a lawyer, an issue of inadequate representation would in all probability be raised were counsel to stipulate the government's case. Generally speaking, the Court of Military Appeals has held that stipulations must be construed to give effect to the intent of the parties. But the Court has also insisted that the intention be clearly expressed and has refused to find a stipulation from the "negative" conduct of the parties. Accordingly, the Court has refused to find apprehension, which aggravates the sentence in desertion cases, where the parties stipulated at trial that the accused was apprehended by civilian authorities; this was because such a stipulation does not rule out the possibility that the accused nevertheless initiated his return to military control voluntarily.'

B-Service Record Entries

The above reasoning is in contrast to the reasoning in United States v. Simone, 6 USCMA 146, 19 CMR 272. In this case an entry in a morning report or service record that the accused was apprehended by civilian authorities has been held sufficient to warrant a finding of apprehension. This was because Army (and Navy) Regulations place an affirmative duty upon the recorder of a morning report (and service record entries) to recite the circumstances surrounding an absentee's return to military control. Even before the Simone case, morning reports and service record entries had been competent to establish the commencement of an unauthorized absence, escape from confinement and breach of arrest. A morning report of a headquarters company has been held sufficient to show an absence from a larger unit.1o Likewise a morning report of the unit to which the accused is assigned will establish an absence from a TAD unit."

It has also been held that the fact that a service record entry has been delayed, or that inconsistencies exist, does not affect admissibility but merely the weight to be given the entry by the fact finders." However, before a service record entry is admissible, it must be shown to have been made because of a duty to record." Therefore a service record entry which was not required has been insufficient to rebut a proper prosecution exhibit showing an absence." The Court also 5. United States v. Cambridge, 3 USCMA 377, 12 CMR 133. 6. United States v. Valli, 7 USCMA 60, 21 CMR 186.

7. United States v. Crawford, 4 USCMA 701, 16 CMR 275.

8. For a similar result in the Navy see United States v. Coats, 2 USCMA 625, 10 CMR 123.

9. United States v. Masusock, 1 USCMA 32, 1 CMR 32; United States v. Wilson, 4 USCMA 3, 15 CMR 3; United States v. Lowery, 2 USCMA 315, 8 CMR 115.

10. United States v. Jack, 7 USCMA 235, 22 CMR 25.

11. United States v. Mitchell, 7 USCMA 238, 22 CMR 122.

12. United States v. Takafuji, 8 USCMA 623, 25 CMR 127; United States v. McNamara, 7 USCMA 575, 23 CMR 39; United States v. Anderten, 4 USCMA 354, 15 CMR 354.

13. Par. 144b, MCM, 1951.

14. United States v. McNamara, 7 USCMA 575, 23 CMR 39.

has indicated by its holdings that it will indulge in a presumption of regularity in order to establish the official nature of records.18

C-Depositions

The use of depositions is widespread in the Navy due to its mobility and dispersement. The Court has, however, placed certain limitations on their use. In United States v. Drain, 4 USCMA 646, 16 CMR 220, the Court held that to be admissible in a trial by general court-martial, the deposition must be taken before a certified counsel.

Although the accused does not have to be physically present at taking of the deposition, it is essential that prior to the taking of a deposition he be represented by counsel of his choice who has had an opportunity to discuss the case with him prior to trial. In United States v. Miller, 7 USCMA 23, 21 CMR 149, a deposition was held inadmissible because counsel representing the accused was given only a few hours notice before the deposition was taken. He had had no opportunity to discuss the case with his newly acquired client and had been out of town on authorized leave.

The Court has recognized in United States v. Valli, 7 USCMA 60, 21 CMR 186, that depositions, as "tools of the prosecution," cut deeply into the privileges of an accused. Their use, therefore, should only be permitted when all the procedures in the Code and Manual are strictly followed. Although minor procedural deviations may be waived if counsel fails to object, in the Valli case the Court refused to find any waiver where there appeared an almost complete disregard of all procedural requirements.10

Depositions may not be used in a capital case-unless the convening authority orders the case to be treated as noncapital or the accused consents to its use. During wartime, quite a number of offenses-such as desertion, attempted desertion, sleeping (or being drunk) on post as a sentinel-are punishable by death. Consequently, the Court of Military Appeals was called upon to determine whether the Korean conflict constituted a war within the meaning of the Code. In United States v. Gann, 3 USCMA 12, 11 CMR 12, the Court held that the existence of armed hostilities and not a formal declaration of war was decisive. Accordingly, for the purposes of the Code, the Korean conflict did constitute war. In the Gann case, the accused was charged with desertion and disobedience of an order. The former was capital; the latter was not. The Court found that since the deposition referred only to the noncapital disobedience charge, its use at the trial did not do violence to the Code's prohibition against use of depositions in capital cases."7

15. United States v. Moore, 8 USCMA 116, 23 CMR 340.

16. But compare United States v. Ciarletta, 7 USCMA 606, 23 CMR 70, where a deposition was held admissible even though there were many defects-all found either technical, immaterial or waived by failure to object.

17. For other cases regarding the Korean conflict as a war, see United States v. Bancroft, 3 USCMA 3, 11 CMR 3 (accused tried by special court-martial for sleeping as sentinel-held conviction valid); United States v. Ayers, 4 USCMA 220, 15 CMR 220, (desertion commencing after Korean conflict started was wartime desertion even though offense committed in the United

D-Search and Seizure

Real evidence can often be the principal nourishment of a court-martial. It is concrete, tangible. But real evidence cannot be used in a court-martial if it was obtained by an unreasonable search and seizure. Yet there are no rigid, fixed rules for determining whether or not a search is reasonable or unreasonable. Each case must be decided on its own facts. Reasonable and therefore lawful searches are these:

(1) Authorized by search warrants.

(2) Incident to a lawful arrest or apprehension.

(3) Under circumstances demanding immediate search and seizure to prevent removal or disposal of property, believed on reasonable grounds to be criminal goods.

(4) Made with the consent of the one in possession of the property being searched.

(5) Authorized by a commanding officer-or one to whom he has delegated his authority-of property under the control of the United States.18

Evidence seized as the result of a lawful search but following an unlawful search, and the result of information obtained from the earlier unlawful search, is inadmissible not only in a court-martial but also in a Federal Court." It has been held that where a confession-in violation of Article 31 of the Code-leads to uncovering real evidence, this evidence is admissible despite the Article 31 violation. Yet this position appears now to have been overruled in United States v. Haynes, 9 USCMA 792, 27 CMR 60, by the "so-called" forbidden fruit of the tainted confession rule.

20

Just as an improperly obtained confession may influence the admissibility of evidence obtained as a result thereof, so an illegal search may taint a later confession. The test used in determining the admissibility of such a confession is: did the accused confess because of the evidence which was obtained by the illegal search? "1 Contrast this holding with United States v. Bennett, 7 USCMA 97, 21 CMR 223, where the Court held that a confession may be admissible if an accused was warned, even though there was an earlier unlawful admission or confession-provided the prosecution can prove that the taint of the first confession has passed away. The problem is the proof of voluntariness. Was the later confession a result of the illegal evidence or was it the result of the free will of the accused? 22

What of wire tapping? Perhaps the leading wire tap case is United States v. Noce, 5 USCMA 715, 19 CMR 11, where the Court pointed out that evidence obtained States); United States v. Sanders, 7 USCMA 21, 21 CMR 147 (held that when armed hostilities ceased the war in Korea over); United States v. Shell, 7 USCMA 646, 23 CMR 110 (the armistice in Korea-27 July 1953 ended the war).

18. United States v. Deleo, 5 USCMA 148, 17 CMR 148; United States v. Swanson, 3 USCMA 671, 14 CMR 89; United States v. Dutcher, 7 USCMA 439, 22 CMR 229; United States v. Berry, 6 USCMA 609, 20 CMR 325; United States v. Wilcher, 4 USCMA 215, 15 CMR 215; United States v. Doyle, 1 USCMA 545, 4 CMR 137; United States v. Davis, 4 USCMA 577, 16 CMR 151; United States v. Volante, 7 USCMA 689, 16 CMR 263; United States v. Ball, 8 USCMA 25, 23 CMR 249.

19. Silverthorne Lumber Co. v. United States, 251 US 385; Par. 152, MCM, 1951, p. 288.

20. United States v. Fair, 2 USCMA 521, 10 CMR 19; Par. 140, MCM, 1951, p. 251.

21. United States v. Deleo, 5 USCMA 148, 17 CMR 148.

22. United States v. Spero, 8 USCMA 110, 23 CMR 334; United States v. Green, 7 USCMA 539, 23 CMR 3.

by wire tapping is not prohibited by the Constitution but by Section 605 of the Federal Communications Act (48 Stat 1103, 47 USC 605) which prohibits the unauthorized inception and publication of communications. The admission of evidence obtained by tapping a wire depends on whether the wire tap falls within the restrictions of the Communications Act. After stating this test, the Court went on to hold that a base communications' system, connected by a trunk line to a public communications' system (which may be used by dialing), does not make the base system public rather than military.23

The Court has pretty well reversed itself as to the use of blood and urine samples as real evidence in courtsmartial. First, in United States v. Williamson, 4 USCMA 320, 15 CMR 320, it was held that body fluids, blood, and urine could be extracted from an accused so long as no brutal means were used. The use of "brutal means" would be depriving an accused of due process. In the Williamson case, urine was taken from an accused by use of a catheter while he was unconscious. Since the specimen of urine was taken without the use of "brutality” and according to recognized medical practices, it was admissible in evidence. The question not decided in that case was: suppose the accused was not unconscious and objected to use of a catheter? United States v. Jones, 5 USCMA 537, 18 CMR 161 and United States v. Speight, 5 USCMA 668, 18 CMR 292, held that catheterization over the objection of the accused is prohibited.

In United States v. Booker, 4 USCMA 335, 15 CMR 335, the Court held that an Article 31 warning did not have to precede the taking of body fluids, and United States v. Barnaby, 5 USCMA 63, 17 CMR 63, that a person suspected of an offense could be ordered by superior authority to furnish a body fluid specimen.

With the change of personnel on the Court, however, a majority of the new Court has now held that an order to an accused to furnish a body fluid sample for use in evidence against him is an illegal order. The accused cannot be tried for a violation of such an order." E-Opinion Evidence

Body fluids, such as urine and blood, are not, of course, physically introduced into evidence. Such evidence is introduced by calling expert witnesses to the stand who interpret and report the results of the laboratory. This is but one example of expert opinion testimony. As a general rule, an expert may be called to state his opinion to matters not within the knowledge of men of common experience and education, but which require special skills or training in the arts, professions, sciences, or trades.25

23. United States v. De Leon, 5 USCMA 747, 19 CMR 43 (nor does the Communications Act prohibit listening in on established extention); United States v. Gopaulsingh, 5 USCMA 772, 19 CMR 68 (Court held Act has no application in foreign countries).

24. United States v. Musguire, 9 USCMA 67, 25 CMR 329; United States v. Jordon, 7 USCMA 452, 22 CMR 242. 25. Par. 138e, MCM, 1951. Fingerprints, United States v. Hagelberger, 3 USCMA 259, 12 CMR 15; United States v. Taylor, 4 USCMA 232, 15 CMR 232. Experts, generally, United States v. Adkins, 5 USCMA 492, 18 CMR 116; United States v. Lowe, 4 USCMA 654, 16 CMR 228; United States v. Biesak, 3 USCMA 714, 14 CMR 132; United States v. McFerren, 6 USCMA 486, 20

Under certain circumstances, an ordinary nonprofessional or "lay" witness may give opinion evidence. The character of a person may be shown by the established general reputation in the community in which the party lives and a witness familiar with this reputation can give his opinion of it. The opinion of people who have had a sufficiently close acquaintance with the person whose character is in issue to be able to form a reliable judgment falls within the permissive opinion rule. (United States v. Haimson, 5 USCMA 208, 17 CMR 208.) Also present in military law is the principle prohibiting proof of bad character through specific acts of misconduct. This rule is to prevent conviction of an individual on his past record instead of the offense for which he is presently being charged. There are certain exceptions. Specific acts of misconduct may be shown if relevant to prove motive, intent, guilty knowledge-where it shows a course of conduct, negates a claim of mistake or rebuts a defense."

SELF INCRIMINATION

ONE OF THE most important and far-reaching areas

of the Code concerns the effect and meaning of Article 31 which provides that no person subject to the Code shall compel anyone to incriminate himself or answer any questions which might tend to incriminate him; or interrogate or request a statement from one accused or suspected of a crime without first informing him of what is suspected and telling him that he does not have to make a statement and if he does, it can be used against him in a court-martial; that no person subject to the Code may be compelled to produce evidence or make a statement not material to the issues at hand and which may tend to degrade him; and that no statement obtained from any person in violation of Article 31, or by coercion, or unlawful influence, or unlawful inducement shall be received against him in a court-martial.

There must be two inquiries in cases involving the admissibility of a pretrial statement (a confession or admission of the accused). First, was the confession obtained because of coercion, unlawful influence or inducement; Second, was the accused properly advised of his rights under the Article." Although the accused does not need to be informed of his rights in the exact language of the Article, he must be told generally what he's suspected of and he must be informed that he does not have to make a statement but that should he never

CMR 202; United States v. Walinch, 8 USCMA 3, 23 CMR 227; United States v. Schick, 7 USCMA 419, 22 CMR 209; United States v. Johnson, 9 USCMA 178, 25 CMR 440. Hair, United States v. Hurt, 9 USCMA 735, 27 CMR 3. Homosexuality, United States v. Manuel, 3 USCMA 739, 14 CMR 157; United States v. Adkins, 5 USCMA 492, 18 CMR 116; United States v. Walinch, 8 USCMA 3, 23 CMR 227. Injuries, United States v. Dejewski, 3 USCMA 53, 11 CMR 53. Insanity, United States v. Schick, 7 USCMA 419, 12 CMR 209; United States v. Gray, 9 USCMA 208, 25 CMR 470. Intoxication, United States v. Lowe, 4 USCMA 654, 16 CMR 228. Narcotics, United States v. Smith, 3 USCMA 803, 14 CMR 221. Value, United States v. Thompson, 10 USCMA 45, 27 CMR 119.

There are thREE situations which pose Article

31 restrictions as to evidence obtained from an accused. First, where the evidence does not require active cooperation on the part of the accused; i.e., an accused is ordered to give fingerprints, be viewed by witnesses or court members, don clothing, etc." Second, where the evidence involves compulsory self incrimination, to wit, directing an accused to speak for voice identification, or provide a urine sample. Third, situations where a statement is made by the accused and the issue is whether the accused was warned of his Article 31 (b) rights; or whether it was the result of coercion, unlawful influence or inducement, as explained in paragraph (d) of the Article.

32

The Court of Military Appeals has held that certain "assertive conduct" or actions are tantamount to making a statement. Thus in United States v. Minnifield, 9 USCMA 373, 26 CMR 153, the Court "equated" an accused's handwriting exemplar to a “statement” as that term is used in Article 31. Therefore, in order to be admissible it must be shown that the provisions of Article 31 have been complied with fully. The Minnifield case overruled United States v. Ball, 6 USCMA 100, 19 CMR 226; United States v. Morris, 4 USCMA 209, 15 CMR 209; United States v. McGriff, 6 USCMA 143, 19 CMR 269. In keeping with the broad prohibitions of Article 31, the Court, in United States v. Nowling, 9 USCMA 100, 25 CMR 362, held that an accused who was suspected of possessing an unauthorized pass should be warned before being asked to produce his pass, for the request to produce amounts to an interrogation and the suspect's reply, either oral or by physical act, constitutes a statement within the meaning of Article 31, UCMJ.

Just because an accused has been advised of his rights under Article 31, it does not automatically follow that any statement thereafter obtained will be admissible in evidence. Certain acts before or after the warning may make the statement inadmissible. It has been held that a promise by an interrogator to keep the statement 28. United States v. O'Brien, 3 USCMA 325, 12 CMR 81; United States v. Divkenson, 6 USCMA 438, 20 CMR 154; United States v. Williams, 2 USCMA 430, 9 CMR 60.

29. United States v. Hernandez, 4 USCMA 465, 16 CMR 39. 30. United States v. Jones, 7 USCMA 623, 23 CMR 87; United States v. Bruce, 9 USCMA 362, 26 CMR 142; United States v. Wenzel, 9 USCMA 140, 25 CMR 402.

31. United States v. Eggers, 3 USCMA 191, 11 CMR 191, Court held compelling an accused to furnish a handwriting specification violates Article 31(a) of the Code.

32. United States v. Brown, 7 USCMA 251, 22 CMR 41; United States v. Greer, 3 USCMA 576, 13 CMR 132; United States v. Booker, 4 USCMA 335, 15 CMR 335; United States v. Gordon, 7 USCMA 452, 22 CMR 242, held that an order to an accused to furnish a sample of his urine was illegal as it violated Article 31.

confidential will render it inadmissible, United States v. Washington, 9 USCMA 131, 25 CMR 393; or a previous statement obtained without the accused being warned of his rights (or obtained by coercion) might render a later voluntary confession inadmissible, if the later confession was a result of the former illegal one, United States v. Bennett, 7 USCMA 97, 21 CMR 223. Thus, if the Government illegally obtains evidence which is likely to produce a later confession and, in fact, the accused later confesses, it is only reasonable to believe that the confession was more the result of the illegally obtained evidence than any expression of the free will of the accused, United States v. Spero, 8 USCMA 110, 23 CMR 334. However, a statement obtained by a trick, may be admissible.

In United States v. Payne, 6 USCMA 225, 19 CMR 351, the accused was apprehended as a possible user of narcotics. He was fully warned and two agents interrogated him. Finally, one of the agents left the room and the other asked the accused: "man to man, just between you and me, when was the last time you used narcotics? The accused replied that he had used narcotics shortly before being picked up. The accused later stated that one reason he made the statement was because only he and the agent were in the room and he figured his word was as good as the agent's. The court held that the statement was admissible; that no command influence was involved; that the parties dealt at arms length; that there was no promise, express or implied, that any disclosures would be kept confidential; that the most that can be said was that the agent had used a trick to catch the accused off guard; that an intentional misrepresentation such as a promise of secrecy, not likely to cause the accused to make an untrue statement, will not render the statement inadmissible. Here the accused was neither compelled nor coerced nor illegally induced to answer the agent's question.

In United States v. Cadman, 10 USCMA 222, 27 CMR 296, the accused while being interrogated asked for counsel. The questioning was stopped and the accused returned to his cell. He was again interviewed a day and one-half later and he confessed without renewing his request for counsel. The Court held no prejudice, for even if the accused was denied counsel at his first interview it had no effect upon the later confession. In United States v. Young, 10 USCMA 249, 27 CMR 323, it was held prejudicial for the law officer to refuse an out-of-court hearing on the admissibility of a confession on the grounds that the facts were being contested, it was a question of fact for the determination of the membership of the trial court. The Court noted that the law officer disregarded his duty to first pass on the admissibility. Rather, he short-circuited himself and submitted the issue directly to the court-martial.

IF AN ILLEGAL confession has been admitted into evidence, however, the case will probably be reversed unless the accused has admitted his guilt by taking the stand at the trial. So, if the issue regarding the voluntariness of a confession is a close one and other evidence of guilt is available to the Government, common sense dictates that the prosecution should not risk tainting the entire case by introducing the questionable confession.

Under certain circumstances, the Court has held that an accused represented by a qualified lawyer-by failing to object at the trial-can waive an objection to an admission of a confession on the ground that he has not been advised of his Article 31 rights." However, 33. United States v. Trojanowski, 5 USCMA 305; United States v. Williams, 8 USCMA 443, 24 CMR 253.

34. United States v. Dial, 9 USCMA 700, 26 CMR 480; United States v. Hurt, 9 USCMA 735, 27 CMR 3. But no waiver in failure to object by unqualified counsel, United States v. Kelly, 7 USCMA 584, 23 CMR 48. See also United States v. Heaney, 9 USCMA 6, 25 CMR 268, and United States v. Shaw, 9 USCMA 267, 26 CMR 47.

this is not an inflexible rule. It should be exercised only in those cases where it does not result in a miscarriage of justice or in depriving the accused of a fair trial. It is also error to admit into evidence testimony that during an interrogation the accused exercised his rights under Article 31 and remained silent. United States v. Kowert, 7 USCMA 678, 23 CMR 142. But see United States v. Hickman, 10 USCMA 568, 28 CMR, 134, where the trial counsel during his final argument adverted to the accused's silence.

WHERE

HERE THE DEFENSE requests an out-of-court hearing on a contested confession, the law officer must grant it. The defense may keep even the word "confession" from the court-martial. In United States v. Cates, 9 USCMA 480, 26 CMR 260, the Court held that the refusal of the law officer to grant an out-of-court hearing was prejudicial. The defense counsel moreover is entitled to be heard on the admissibility of a confession. For where the claim of an involuntary confession is made, the accused is entitled as a matter of right to develop his contentions, and the Manual provisions permitting the use of evidence discovered by reason of an illegal confession is valid.”

38

The first point of inquiry in a confession case is of course whether the issue of voluntariness is reasonably raised. The issue of voluntariness was found to be raised when the accused testified that he confessed because he had been led to understand he would stay in the brig until he did so. Yet no taint was found in another confession made four days later where it was shown that the first statement had no effect on the subsequent one and accused was fully warned prior to giving the statement. In another case it was held that no issue was raised by the claim of the accused that he felt investigative agents might hound his wife by questioning. (The wife was only questioned once for a short time two days before the confession.) The Court noted, however, that the effect of such circumstances can vary with different persons depending upon age, education, societal experience and background." The issue was not raised when two persons were charged with theft and the accused claimed he confessed because the co-actor threatened suicide. The result might have been different if only the other party had been arrested-not the accused-and the silence of the accused could have led to suicide. A claim by the accused that he confessed because he was tired of being

35. United States v. Fisher, 4 USCMA 152, 15 CMR 152; United States v. Shaw, 9 USCMA 267, 26 CMR 47; United States v. Kelley, 7 USCMA 584, 23 CMR 48. (But the Manual provision that an admission may be introduced without preliminary proof of voluntariness if there is no indication that it was involuntary cannot whittle away substantive rights given an accused under Article 31, UCMJ.)

36. United States v. Walker, 9 USCMA 187, 25 CMR 449. 37. United States v. Haynes, 9 USCMA 792, 27 CMR 60. 38. United States v. Hogan, 9 USCMA 365, 26 CMR 145. 39. United States v. Choate, 9 USCMA 680, 26 CMR 460. Issue was raised by an FBI agent interrogating an accused on a Military base-with Military present-without a warning. It held this was not a purely civil investigation as a matter of law and it was error to deny accused's request for out-of-court conference on voluntariness of pretrial statement. United States v. Young, 10 USCMA 249, 27 CMR 323.

questioned and wanted to get the matter over with, raised no issue of voluntariness; the prompting of one's conscience cannot be equated to duress."

The issue of voluntariness was raised where the accused, after being warned and writing out a denial of guilt, afterward admitted that the denial was false. He was then informed that if he gave a "true" confession the "false statement" would be destroyed. Otherwise he would be prosecuted with making a false official statement."

The threat of the use of a lie detector was held not to have raised the issue of voluntariness in United States v. McKay, 9 USCMA 527, 26 CMR 307. There the accused was told he had the right to remain silent; that the agent would only use the lie detector should the accused speak. A majority of the Court held that threat of the use of a lie detector was insufficient to render the statement involuntary because no effort was made to use it unless the accused decided not to exercise his privilege under Article 31 and make a statement."

ONE AREA NOT fully explored as to an Article 31

A

warning is with respect to medical boards and doctors. In United States v. Shaw, 9 USCMA 267, 26 CMR 47, the defense theory was mental incapacity. A defense expert (a civilian psychiatrist) testified concerning insanity and as to his questioning of the accused. prosecution witness (a Navy psychiatrist) testified that the accused was sane. He related conversations with the accused and that he admitted the offenses. The majority opinion found waiver: "Not only was there no objection . . . but the defense first presented medical evidence regarding the accused's mental condition." Judge Ferguson dissented, stating that it was prejudicial error to permit the Navy psychiatrist to go beyond the scope of the direct evidence, which only had to do with the accused's mental condition-not his admission of the offense.

When co-accused are tried, illegally obtained evidence as to one accused is also prejudicial as to the other accused. Such was the Court's holding in United States v. Sessions, 10 USCMA 383, 27 CMR 457. The Court reversed as to both accused where joint offenses were charged at a joint trial and the case was defended in common. A majority of the Court felt that it was impossible to separate the matter, for the illegal item as to one necessarily affected the other.

It was held error for the trial counsel to have impeached an accused by an alleged confession and evidence of other misconduct, some eight years previously, when the accused took the stand to contest the voluntariness of a statement, United States v. Mareno, 10 USCMA 406, 27 CMR 480. Of course, confessions and

40. United States v. McQuaid, 9 USCMA 563, 26 CMR 343. 41. United States v. Bruce, 9 USCMA 362, 26 CMR 142 (also the law officer's instruction on voluntariness was erroneous in that he instructed that the court may refuse to consider the confession if found involuntary instead of must.

42. See United States v. Thomas, 6 USCMA 92, 19 CMR 218 (low mentality); United States v. McGriff, 6 USCMA 143, 19 CMR 269 (accused kept standing in corner); United States v. Hagelberger, 3 USCMA 259, 12 CMR 15 (nervousness caused by presence of officers); for run-down of CMA case law on confessions and admissions, see Tedrow's Digest, pages 63-79, inclusive.