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Scope of the protection
- Standard for protection. Mil. R. Evid. 301(a): “. . . evidence of a testimonial or communicative nature.” “Article 31, like the Fifth Amendment, focuses on testimonial compulsion.”
United States v. Williams , 23 M.J. 362, 366 (C.M.A. 1987).
- Applying the standard.
a. Oral or written statements are generally protected. Pennsylvania v. Muniz , 496 U.S. 582 (1990). Drunk driving suspect’s slurred speech and other evidence showing his lack of muscular coordination constituted nontestimonial and, therefore, admissible aspects of his unwarned responses to police questioning. In contrast, the suspect’s answer to police questioning about the date of his sixth birthday was testimonial and should have been suppressed. “Whenever a suspect is asked for a response requiring him to communicate an express or implied assertion of fact or belief, the suspect confronts the ‘trilemma’ of truth, falsity, or silence and hence the response (whether based on truth or falsity) contains a testimonial component.” Id. at 597.
b. Verbal acts (physical act which is the equivalent of speaking) are generally protected. (1) United States v. Whipple , 4 M.J. 773 (C.G.C.M.R. 1978). The accused’s verbal act of handing over drugs in response to officer’s request was found to be a protected “statement.” (2) Fisher v. United States , 425 U.S. 391 (1976). Accounting documents used to prepare tax returns were not protected because they were prepared voluntarily, long before any prosecution was being considered. Additionally, the act of turning over the documents was not testimonial because it conveyed no factual information that the government did noat already have. (3) United States v. Hubbell , 530 U.S. 27 (2000). The Supreme Court held that the act of turning over documents in response to a subpoena duces tecum and a grant of immunity was a testimonial act because the prosecutor did not know of the location or even existence of the documents. The defendant had to use mental and physical steps to inventory the documents, and his production of the documents communicated their existence, possession, and authenticity. (4) United States v. Swift , 53 M.J. 439 (C.A.A.F. 2000). A divorce decree turned over by the accused was not testimonial evidence because it was voluntarily prepared before he was ordered to produce it by his command. Additionally, the act of turning over the decree was not testimonial because the existence and location of the document was a “foregone conclusion” and added “little or nothing to the sum total of the Government’s information.” Finally, the Court stated that even if the act was testimonial, it fell under the “required records exception,” since the decree was maintained for “legitimate administrative purposes.”
c. Physical characteristics are not protected. (1) Dental Impressions for bite mark comparisons not protected. United States v. Martin
, 9 M.J. 731 (N.M.C.M.R. 1979), aff’d on other grounds , 13 M.J. 66 (C.M.A. 1982). (2) Handwriting sample not protected; dicta on voice sample. United States v. Harden , 18 M.J. 81 (C.M.A. 1984). (3) Voice samples not protected. United States v. Akgun , 24 M.J. 434 (C.M.A. 1987). (4) Body fluids not protected. (a) Blood sample is not testimonial. United States v. Armstrong , 9 M.J. 374 (C.M.A. 1980). (b) Urine specimen not protected. Murray v. Haldeman
, 16 M.J. 74 (C.M.A. 1983). (c) Note however, that under Mil. R. Evid. 304(h)(4), if an accused refuses a lawful order to submit for chemical analysis a sample of his or her blood, breath, urine, or other body substance, evidence of such refusal may be admitted into evidence on: (i) A charge of violating an order to submit such a sample; or, (ii) Any other charge on which the results of the chemical analysis would have been admissible.
d. Identification is generally not protected by PASI. Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County , 542 U.S. 177 (2004). A request for identification during a Terry stop did not fall within the scope of protection afforded by the Fifth Amendment and Miranda . The Court held that to qualify as incriminating, the individual must reasonably believe that his communication could be used in a criminal prosecution against him or could provide a link to other evidence that might be so used. Providing personal identification is normally insignificant, and would be incriminating in only the most unusual circumstances. In this case, the defendant failed to show that his refusal to comply with the officer’s requests was based on a real fear that his identity would incriminate him or lead to evidence that could be used against him. However, the Court left open the possibility that there may be a circumstance where furnishing identification might lead to evidence needed to convict the witness of a separate offense, and therefore be protected by the Fifth Amendment.
See also Pennsylvania v. Muniz , 496 U.S. 582 (1990); United States v. Tubbs , 34 M.J. 654 (A.C.M.R. 1992) (questioning to identify a suspect during “booking” process does not require a testimonial response).
e. Duty to report — partially protected. PASI is violated if a regulatory duty to report misconduct will directly lead to, or is, evidence of one’s own misconduct. (1) United States v. Heyward , 22 M.J. 35 (C.M.A. 1986). Regulation requiring Airmen to report drug abuse of other Airmen is valid, but the PASI protects against conviction for dereliction of duty where “at the time the duty to report arises, the witness to drug abuse is already an accessory or principal to the illegal activity that he fails to report . . . .” (2) United States v. Sanchez
, 51 M.J. 165 (C.A.A.F. 1999). Conviction for misprision of a serious offense upheld where accused failed to report an aggravated assault. Court said if accused had immediately reported the offense, he would not have committed misprision. (3) United States v. Medley , 33 M.J. 75 (C.M.A. 1991). Court declined to extend
Heyward exception to cases where a social relationship between drug users is so interrelated that it would be impossible to reveal one incident without potentially incriminating the accused on a separate incident.
See also United States v. Bland , 39 M.J. 921 (N.M.C.M.R. 1994). (4) United States v. Hammond, 60 M.J. 512 (A. Ct. Crim. App. 2004). The Army court held that a conviction of fleeing the scene of an intentional collision does not violate the Fifth Amendment or Article 31, UCMJ. Balancing “the important governmental purpose in securing . . . information against the right of the servicemember to be protected from compulsory self-incrimination,” the service court found that “although staying at the scene may lead to inquiry that in turn leads to arrest and charge, those developments depend on different factors and independent evidence.”