Cleansing Statement

"You are advised that the statement you made on _____________ cannot and will not be used against you in a subsequent trial by court-martial."

Sometimes the issue does come up where a cleansing warning will save an Airman’s admission for use at trial.

Bottom line: If despite your best efforts an Airman makes an admission and you have not advised them of their rights, you should advise the Airman and include a cleansing warning (in bold below) to save the admission for trial.

Cleansing warnings. When an interrogator obtains a confession or admission without proper warnings, subsequent compliance with Article 31 will not automatically make later statements admissible. This is best illustrated with the following example: Assume the accused or suspect initially makes a confession or admission without proper warnings. This is called an "involuntary statement" and, due to the deficient warnings, the statement would be inadmissible at a later court-martial. Next, assume the accused or suspect is subsequently properly advised and then makes a second statement identical (or otherwise) to the first "involuntary" statement. Before the second statement can be admitted, the trial counsel must make a clear showing to the court that the second statement was both voluntary and independent of the first "involuntary" statement. There must be some indication that the second statement was not made only because the person felt the government already knew about the first confession and, therefore, he had "nothing to lose" by confessing again.



The Court of Military Appeals has sanctioned a procedure to be followed when a statement has been improperly obtained from an accused or suspect. In this situation, rewarn the accused giving all warnings mandated. In addition, include a "cleansing warning" to this effect: "You are advised that the statement you made on _____________ cannot and will not be used against you in a subsequent trial by court-martial." Although not a per se requirement for admission, this factor (i.e., a "cleansing warning") will assist the trial counsel in meeting his burden of a "clear showing" that the second statement was not tainted by the first.
 

Another problem in this area concerns the suspect who has committed several crimes. The interrogator may know of only one of these crimes, and properly advises the suspect with regard to the known offense. During the course of the interrogation, the suspect relates the circumstances surrounding desertion, the offense about which the interrogator has warned the accused. During questioning, however, the suspect tells the interrogator that, while in a desertion status, he or she stole a military vehicle. As soon as the interrogator becomes aware of the additional offense, the interrogator must advise the suspect of his or her rights with regard to the theft of the military vehicle before interrogating the suspect concerning this additional crime.

If the interrogator does not follow this procedure, admissions concerning the theft of the military vehicle that are given in response to interrogation regarding the theft probably will be excluded, even though the statements regarding the desertion may be admissible.

One other word of caution: evidence obtained as a result of an unadvised admission may not be admissible in court as “fruit of the poisonous tree.”

Find more on this topic in the 2008 Military Commander and the Law, p. 145-148 (If you do not have a copy, stop by or check the internet).