At trial the accused blew providency on an AWOL plea. The prosecution decided they wanted to go forward on the desertion. As part of the case the prosecution wanted to use unwarned statements made to the First Sergeant. The military judge said the statements were coerced, etc., and excluded them. The prosecution appealed. Of course the ACCA ruled in favor of the government that being dragged to the First Sergeant’s office, locked up, and asked a bunch of questions, was not an interrogation and any statements were voluntary. Cases cited are United States v. Duga, 10 M.J. 206 (C.M.A. 1981); United States v. Loukas, 29 M.J. 385 (C.M.A. 1990). Basically it is in the mind of the questioner, not the person being questioned.

Here is the noteworthy piece.

While not raised by the parties, there is a final matter which we believe merits comment. That is, having received notice of the government’s intent to appeal, it is patent the military judge was attempting to discourage the government from pursuing that appeal, and that ultimately he would not consider evidence he determined should be suppressed, even if the government prevailed. We are dismayed by the following military judge’s record comments: “I do not expect to get overturned on this issue” and if this case does come, you know, back three or four months from now I will be the military judge in the case . . . that is going to hear the facts in the future including the [first sergeant]’s testimony if they believe the statements should be admissible. But if you want to appeal you are welcome to. Is that your final decision, Government? I just want to make sure. These gratuitous comments certainly call into question at least the perception of the fairness and impartiality of the military judge with regard to the parties, here specifically the government.

Davis & Leo on the “Sympathetic Detective” Interrogation Strategy Deborah Davis and Richard A. Leo (University of Nevada, Reno and University of San Francisco – School of Law) have posted Selling Confession: Setting the Stage with the ‘Sympathetic Detective with a Time-Limited Offer’ (Journal of Contemporary Criminal Justice, Forthcoming) on SSRN. Here is the abstract: The effectiveness of an interrogation tactic dubbed the “sympathetic detective with a time limited offer” was tested. Participants read two versions of an interrogation transcript, with and without the tactic. Those who read the sympathetic detective version believed the detective had greater authority to determine whether and with what to charge the suspect, more beneficent intentions toward the suspect, and viewed confession as more wise. However, regression analyses indicated that for innocent suspects, only perceptions of the strength of evidence against the suspect and the detective’s beneficence and authority predicted the perceived wisdom of false confession. Interrogation tactics were generally effective, as indicated by participant recommendations of confession (versus invoking Miranda, denial, or continuing to talk without admitting guilt) for both innocent (16.7%) and guilty (74.4%) suspects; and reasons offered for participants’ recommendations for confession versus other choices generally conformed to those reported by real-life confessors and interrogation scholars.

Courtesy CrimProfBlog.