Coerced confessions case.

ACCA has issued a Memorandum Opinion in United States v. Markis, ARMY 20070580 (A. Ct. Crim. App. 18 August 2009).

Appellant had given three pre-trial admissions to CID. The defense sought to exclude the confessions as being coerced. The military judge permitted the defense to present expert testimony on coerced confessions, specifically it appears how the Reid Technique may lead to coerced confessions. However, the military judge refused to allow the defense to ask hypothetical questions unless the defense first asked for an Article 39(a), UCMJ, session to get a ruling. It appears that the defense did not seek to ask a hypothetical and did not ask for an Article 39(a) once the prosecution witnesses had testified and they had laid a sufficient foundation to get to the point where a hypothetical might be offered.

The opinion has a nice little review of what you must do, by way of proffer, to preserve an objection.

The correctness of a ruling that excludes evidence is not preserved for appellate review unless “the substance of the evidence was made known to the military judge by offer or was apparent from the context in which questions were asked.” Mil. R. Evid. 103(a)(2); see also United States v. Shaffer, 46 M.J. 94, 98 (C.A.A.F. 1997). “[A]n offer of proof is required to clearly and specifically identify the evidence sought to be admitted and its significance.” United States v. Hayes, 36 M.J. 361, 363 (C.M.A. 1993) (quoting United States v. Means, 24 M.J. 160, 162-163 (C.M.A. 1987)). “An offer of proof allows the military judge to make an informed ruling and permits the appellate courts to review that ruling to determine whether exclusion of the evidence resulted in reversible error.” Means, 24 M.J. at 162.

I would add that in the proper situation – usually when the proffer would be long and complex — the proffer is best made by having the witness testify in a motion in-limine. Here for example the defense would have been able to state the facts and circumstances from the evidence adduced so far and proffer some reasonably accurate hypothetical. In this manner the issue is properly preserved.

The basis for the military judge’s exclusion of the evidence was that:

[T]he military judge clearly did not want the witness to opine that appellant’s confessions were merely the product of his suggestibility, as this would “usurp the exclusive function of the jury to weigh the evidence and determine credibility.” United States v. Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007). [1]Specifically, the military judge expressed his concerns that “he is interposing his own judgment for that of the members” and “you’re asking him to interpose his own judgment about whether or not the interrogation conducted by CID may have been suggestive or not. That’s not for him to say.

Rather than find the military judge erred, the court based its decision on the weight of the evidence. The court found the evidence was strong, partly based on appellants own three detailed confessions, and the military judge instructed the members that they must consider the coerced confession issues raised by the defense.

Application of this case to future similar cases may depend on the theory of the defense challenge to the interrogation methods and their result. Markis appears to be purely a “coerced” confession case. Generally in a coerced confession case the facts stated by the accused in the confession are true and the accused is agreeing that he did the acts. So the bottom line issue is not the truth of the confession but how it was obtained. A false confession (or false/coerced confession) case is somewhat different.

A useful but dated overview of false and coerced confessions can be found in: Richard P. Conti, The Psychology of False Confessions, 2(1) J. Credibility Assessment & Witness Psychology, 14 (1999).

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[1] Brooks is an excellent case on human lie detector testimony and the limits of prosecution expert testimony in child abuse cases.