duty had the natural tendency to induce the making of a statement by
appellant,
the
warning
requirement
of
Article
31b...
was
applicable."
16. In U.S. v. Holliday, 24 MJ 686 (ACMR, 1987), the accused said he wanted a
lawyer when the CID agent advised him of his rights. Following this, the agent
did not ask him any further questions, but did require the suspect to provide a
handwriting exemplar. The court explained that since the suspect had invoked
his rights, it would have been improper to have continued to interrogate him.
The issue, however, was whether or not the suspect had, in fact, been subjected
to further interrogation. The court held that the compelled production of a
handwriting sample "does not violate the Fifth Amendment." The agent asked the
suspect no further questions, and the situation "was not a subterfuge to place
the appellant in a coercive interrogation environment that was likely to
undermine the appellant's previous invocation of his rights. It was not the
"functional equivalent" of interrogation.
The same is true for asking a
suspect for his consent to a search. U.S. v. Roa, 24 MJ 297 (CMA, 1987).
17. In U.S. v. Byers, 26 MJ 132 (CMA 1988), a CID agent advised a suspect of
his rights. Before doing so, however, he did the following:
"I told him that I would be talking to him today about narcotics. I
told him that at this point I would not like for him to make any
statement, but rather to listen to what I had to say. From there I
told him that he would have several options available to him, one
was to face the issue at hand, which was that he had a positive drug
urinalysis and I would be questioning him about that, and it was
perfectly clear, and there was no doubt in my mind that he had used
marijuana, but he would have to face the situation by cooperating
with the government in the form of making a full admission and
possibly providing a signed, sworn statement, or he had the option
of leaving the interview at any time."
18. The court held that a 20 to 40 minute "lecture" constituted the equivalent
of interrogation. The rights advisement "should be given when an interrogation
begins -- not at its midpoint."
PART G - WHAT IS A "STATEMENT"?
What is a "Statement"?
Article 31b, UCMJ, you will recall, states that no
person subject to this chapter (UCMJ) "may interrogate or request any statement
from an accused or a person suspected of an offense" without first informing
him of his rights. We have already examined the definitions of "suspect" and
"interrogate." The next question concerns the definition of what a "statement"
is.
1. Physical acts. In Holt v. U.S., 218 U.S. 1021 (1910), the accused was made
to try on a blouse. A witness then testified that it fit the accused. The
Supreme Court held that the Fifth Amendment privilege against compelled self-
incrimination "is a prohibition of the use of physical or moral compulsion to
extort communications from him, not an exclusion of his body as evidence when
it may be material." This situation, then, was compared to
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