7. The underlying judicial attitude is that the individual who incriminates himself should do so
knowingly and freely, or not at all. This is not to say that there is no place in our law for the use of
confession--merely that certain safeguards must be accorded in obtaining them.
8. Self-incriminating evidence essentially includes anything which comes from the individual
and tends to establish his guilt. Once a type of evidence or activity is defined as self-incriminating,
the necessary warning waiver requirement comes into play. If evidence is not found to be self-
incriminating, the guidelines governing warning and waiver are no longer crucial.
9. To determine whether the evidence is or is not self-incriminating, one must look to the point
of reference--the Fifth Amendment or Article 31.
10. Article 31, UCMJ, states the following:
a. Facts showing an offense probably has been committed.
b. Compulsory self-incrimination prohibited.
c. No person subject to this chapter may compel any person to incriminate him- or herself
or to answer any question to which the answer may tend to incriminate him.
d. No person subject to this chapter may interrogate, or request any statement from, an
accused or a person suspected of an offense without first informing him of the nature of the offense
of which he is accused or suspected and that any statement made by him may be used as evidence
against him in a trial by court-martial.
e. No person subject to this chapter may compel any person to make a statement or
produce evidence before any military tribunal if the statement or evidence is not material to the
issue and may tend to degrade him.
f. No statement obtained from any person in violation of this article, or through the use of
coercion, unlawful influence, or unlawful inducement may be received in evidence against him in
trial by court-martial.
11. Amendment IV to the US Constitution is quoted in full as follows:
"The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized."
12. Amendment V to the US Constitution is quoted in full as follows:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in
the militia, when in actual service in time of war or public danger; nor shall any person be subject
for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without