having a jury look at a prisoner and compare his physical features with those
in a photograph. There was, then, no violation of the Fifth Amendment.
a. The analogy of having a jury look at a suspect was a prophetic one.
Years later, the issue surfaced in U.S. v. Cain, 5 MJ 844 (ACMR, 1979). The
robbery victim testified that the robber "had a gold tooth on his right front,
about right here, with a star on it." During the trial, the accused was forced
to stand and open his mouth in front of the jury.
The court held that the
privilege against self-incrimination "allows the compulsion of such acts as
taking fingerprints, placing a foot in a footprint, physical examination of the
accused's body for scars... or (trying) on a garment." Those cases "were found
not to require active participation and affirmative conduct in the production
of incriminating evidence."
The court concluded that an accused could be
compelled "to submit to a dental examination for comparison of a tooth fragment
found at the crime scene... the passive submission of the accused's body to a
physical examination simply does not constitute a 'statement' within the
meaning of Article 31."
A defendant, then, "has no maintainable privilege
against being required, as in the case before us, to stand, or to remove his
toupee (wig) for identification purposes. We, therefore, hold that the act of
showing a tooth to the court is not an incriminating communication within the
meaning of Article 31, UCMJ."
The Supreme Court addressed the admissibility of videotapes of drunk
driving suspects in Pennsylvania v. Muniz, 496 US 582, 110 LEd2d 528, 110 SCt
2638 (1990). Over the accused's objections, the videotape of his attempts to
complete physical sobriety tests and his answers to police questions was
admitted at trial.
In plurality opinion, the Muniz court held that the
physical appearance of the accused was nontestimonial.
The Court also found
that his answers to most of the police officer's questions -- while not
preceded by Miranda warnings -- were admissible as responses to routine booking
questions -- not questions designed to elicit an incriminating response.
b. In another similar situation, the government took impressions of the
accused's teeth.
The court found this to be "neither testimonial nor
communicative in nature."
In other words, the mere demonstration of the
accused's body (including the taking of dental impressions) "is simply a form
of obtaining real or physical evidence."
Again, the government's action was
upheld. U.S. v. Martin, 9 MJ 731 (NCMR, 1979).
2. Line-ups. In U.S. v. Wade, 18 L.Ed.2d 1149 (1967), the Supreme Court held
that the appearance of a suspect in a line-up did not violate his privilege
against self-incrimination. The privilege "protects an accused only from being
compelled to testify against himself, or otherwise provide the state with
evidence of a testimonial or communicative nature." The court explained that
"compelling the accused merely to exhibit his person for observation by a
prosecution witness prior to trial involves no compulsion of the accused to
give evidence having testimonial significance. It is compulsion of the accused
to exhibit his physical characteristics, not compulsion to disclose any
knowledge he might have."
As for speaking words in the line-up, the court
ruled:
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