United States v. Schwed

Quinn, Chief Judge

(concurring in the result) :

I doubt whether there is any real difference between a general instruction to the effect that, notwithstanding a ruling admitting a confession into evidence, the court members can determine for themselves that the confession is involuntary because obtained by coercion or undue influence, and that they, therefore, need not consider it at all as evidence and an instruction advising the court-martial that, despite the ruling admitting the confession, it can consider whether the confession is voluntary, and if it concludes that it is not, give it no weight whatsoever. The difficulty here is that the instruction equates the question of voluntariness to truthfulness. In part, the law officer said, “you should give weight to the statements only to the extent that you believe them to be truthful.” A confession can be truthful and yet involuntary. Under the instruction given, it is possible, as the principal opinion points out, that if the confession were corroborated by some other evidence, it would not be rejected or disregarded, even though the court members concluded that it had been involuntarily obtained. Accordingly, I join in the result reached in the principal opinion.