due process of law; nor shall private property be taken from public use, without just compensation."
(Emphasis added.)
13. The most common type of incriminating activity is confession. This is a complete
admission of guilt. The suspect's statement includes an admission of all elements of the alleged
crime. Examples of admissions are claims of self-defense or assertions of mistake or accident by the
suspect. Both of these activities, confession, and admission are protected under the Fifth
Amendment and Article 31.
14. Other types of incriminating activity are acts involving conscious mental cooperation such
as handwriting samples or voice samples. Neither of these actions is protected by the Fifth
Amendment, which applies only to the compulsion of one's communication of his thoughts. Not
every compulsion is a communication within the protection of the Fifth Amendment. These
samples have been held to be only identifying physical characteristics outside the protection of the
Fifth Amendment. However, both are protected under Article 31 of the UCMJ. Under the military
rule, any act that requires conscious mental cooperation is considered self-incriminating activity, for
which protection is given.
15. All evidence obtained must be obtained in a reasonable manner. If any acts carried out are
unreasonable, they will be considered illegal and will be inadmissible in court. Types of evidence
which have been held not to be self-incriminating are--
a. Taking of fingerprints.
b. Trying on clothing.
c. Exhibition of the body.
d. Visual identification.
e. Physical examination by physician.
16. Once determined that a particular type of activity is self-incriminating and thus protected
by Article 31, it becomes necessary to establish safeguards to protect an individual's rights. In order
to admit any self-incriminating statement as evidence, it must be clearly established that the proper
warnings were given, and that the suspect affirmatively waives those rights.
17. Prior to any questioning or interrogation of a suspect or an accused, the following warning
must be given:
a. He will be informed of the offense of which he is accused or suspected.
b. He has the right to remain silent.
c. Any statement he makes may be used against him.
d. He has the right to counsel.
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