"not even a shadow of testimonial compulsion upon or enforced communication by
the accused was involved either in the extraction or the chemical analysis.
Petitioner's testimonial capacities were in no way implicated; indeed, his
participation, except as a donor, was irrelevant to the results of the test,
which depend on chemical analysis and on that alone.
Since the blood test
evidence, although an incriminating product of compulsion, was neither
petitioner's testimony nor evidence relating to some communicative act or
writing by the petitioner, it was not inadmissible on privilege grounds."
The military courts dealt with this same issue in U.S. v Armstrong, 9 MJ
374 (CMA, 1980).
Again, the issue was whether or not it was "testimonial
compulsion." Again, "words or conduct which lack testimonial characteristics
are not protected by the Fifth Amendment." The court explained that the terms
"interrogate" and "statement" in Article 31b "do not suggest that Congress
meant to require that a warning be given before the investigator obtained from
a suspect evidence which would not constitute a communication by that suspect."
The court held that Article 31b covered the same matter as did the Fifth
Amendment: testimonial communications and not body fluids."
5. Voice samples.
In U.S. v. Chandler, 17 MJ 678 (ACMR, 1983), the court
explained that "words or conduct which lack testimonial characteristics are not
protected by the privilege against self-incrimination."
A compelled voice
sample does not, then involve Article 31, "because this evidence is not
testimonial or communicative in nature." This "is not a statement... but is a
physical act, similar in nature to appearing in a line-up or submitting to
fingerprinting." The suspect is simply "exhibiting a physical characteristic."
Such action "does not violate the privilege against self-incrimination." U.S.
v. Akgun, 19 MJ 770 (ACMR, 1984).
6. Consent to search. Asking a suspect for his consent to a search also does
not involve a "statement" within the coverage of Article 31. U.S. v. Thompson,
12 MJ 993 (AFCMR, 1982). Consequently, it does not require the giving of such
warnings. U.S. v. Roa, 20 MJ 867 (AFCMR, 1985), Aff'd 24 MJ 297 (CMA, 1987).
7. Requests for identification.
Article 31b applies to a request for "any
statement regarding the offense of which he is accused or suspected."
As a
result, a "statement of a person's identity is not an element of a crime; nor
does it tend to prove a crime."
U.S. v. Davenport, 9 MJ 364 (CMA, 1980).
One's identity, then, "is neutral."
U.S. v. Lloyd, 10 MJ 172 (CMA, 1981).
Requiring one to produce an identification card "does not require advice and
warning in accordance with Article 31."
U.S. v. Thomas, 10 MJ 687 (ACMR,
1981).
a. In U.S. v. Earle, 23 MJ 795 (NMCMR, 1981), a Marine Corps second
lieutenant suspected the accused of having shouted disrespectful words
concerning two commissioned officers.
The lieutenant ordered the suspect, a
private, to turn over his identification card "in order to clarify who the
individual was that he suspected of violating the UCMJ." On appeal, the court
held that there was no incrimination involved in asking the suspect to produce
his U.S. Armed Forces identification card for purposes of identification. As
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