18.08.2013 Views

2008 edition - Fort Sam Houston - U.S. Army

2008 edition - Fort Sam Houston - U.S. Army

2008 edition - Fort Sam Houston - U.S. Army

SHOW MORE
SHOW LESS
  • No tags were found...

Create successful ePaper yourself

Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.

wealth, or possession; international law, including the laws of<br />

war, general maritime law and the law of air and space; and the<br />

common law. This definition is taken without change from Para.<br />

147 a except that references to the law of space have been added.<br />

“Regulations” of the United States include regulations of the<br />

armed forces.<br />

When a party requests that domestic law be noticed, or when<br />

the military judge sua sponte takes such notice, a copy of the<br />

applicable law should be attached to the record of trial unless the<br />

law in question can reasonably be anticipated to be easily available<br />

to any possible reviewing authority.<br />

1984 Amendment: Subsection (a) was modified in 1984 to<br />

clarify that the requirements of Mil. R. Evid. 201(g) do not apply<br />

when judicial notice of domestic law is taken. Without this clarification,<br />

Mil. R. Evid. 201A could be construed to require the<br />

military judge to instruct the members that they could disregard a<br />

law which had been judicially noticed. This problem was discussed<br />

in United States v. Mead, 16 M.J. 270 (C.M.A.1983).<br />

Foreign law. Rule 201A(b) is taken without significant change<br />

from FED R. CRIM. P 26.1 and recognizes that notice of foreign<br />

law may require recourse to additional evidence including testimony<br />

of witnesses. For purposes of this Rule, it is intended that<br />

“foreign law” include the laws and regulations of foreign countries<br />

and their political subdivisions and of international organizat<br />

i o n s a n d a g e n c i e s . A n y m a t e r i a l o r s o u r c e r e c e i v e d b y t h e<br />

military judge for use in determining foreign law, or pertinent<br />

extracts therefrom, should be included in the record of trial as an<br />

exhibit.<br />

SECTION III<br />

Exclusionary Rules and Related Matters<br />

Concerning Self-Incrimination, Search and<br />

Seizure, and Eyewitness Identification<br />

Military Rules of Evidence 301–306, 311–317, and 321 were new<br />

in 1980 and have no equivalent in the Federal Rules of Evidence.<br />

They represent a partial codification of the law relating to selfincrimination,<br />

confessions and admissions, search and seizure,<br />

and eye-witness identification. They are often rules of criminal<br />

procedure as well as evidence and have been located in this<br />

section due to their evidentiary significance. They replace Federal<br />

Rules of Evidence 301 and 302 which deal with civil matters<br />

exclusively.<br />

The Committee believed it imperative to codify the material<br />

treated in Section III because of the large numbers of lay personnel<br />

who hold important roles within the military criminal legal<br />

system. Non-lawyer legal officers aboard ship, for example, do<br />

not have access to attorneys and law libraries. In all cases, the<br />

Rules represent a judgement that it would be impracticable to<br />

operate without them. See Article 36. The Rules represent a<br />

compromise between specificity, intended to ensure stability and<br />

uniformity with the armed forces, and generality, intended usually<br />

to allow change via case law. In some instances they significantly<br />

change present procedure. See, e.g., Rule 304(d) (procedure for<br />

suppression motions relating to confessions and admissions).<br />

ANALYSIS OF THE MILITARY RULES OF EVIDENCE<br />

App. 22, M.R.E. 301(b)(1)<br />

Rule 301 Privilege concerning compulsory selfincrimination<br />

(a) General rule. Rule 301(a) is consistent with the rule expressed<br />

in the first paragraph, Para. 150 b of MCM, 1969 (Rev.),<br />

but omits the phrasing of the privileges and explicitly states that,<br />

as both variations apply, the accused or witness receives the<br />

protection of whichever privilege may be the more beneficial. The<br />

fact that the privilege extends to a witness as well as an accused<br />

is inherent within the new phrasing which does not distinguish<br />

between the two.<br />

The Rule states that the privileges are applicable only “to<br />

evidence of a testimonial or communicative nature,” Schmerber v.<br />

California, 384 U.S. 757, 761 (1966). The meaning of “testimonial<br />

or communicative” for the purpose of Article 31 of the<br />

Uniform Code of Military Justice is not fully settled. Past decisions<br />

of the Court of Military Appeals have extended the Article<br />

31 privilege against self-incrimination to voice and handwriting<br />

exemplars and perhaps under certain conditions to bodily fluids.<br />

United States v. Ruiz, 23 U.S.C.M.A. 181, 48 C.M.R. 797 (1974).<br />

Because of the unsettled law in the area of bodily fluids, it is not<br />

the intent of the Committee to adopt any particular definition of<br />

“testimonial or communicative.” It is believed, however, that the<br />

decisions of the United States Supreme Court construing the Fifth<br />

Amendment, e.g., Schmerber v. California, 384 U.S. 757 (1966),<br />

should be persuasive in this area. Although the right against selfincrimination<br />

has a number of varied justifications, its primary<br />

purposes are to shield the individual’s thought processes from<br />

Government inquiry and to permit an individual to refuse to<br />

create evidence to be used against him. Taking a bodily fluid<br />

sample from the person of an individual fails to involve either<br />

concern. The fluid in question already exists; the individual’s<br />

actions are irrelevant to its seizure except insofar as the health<br />

and privacy of the individual can be further protected through his<br />

or her cooperation. No persuasive reason exists for Article 31 to<br />

be extended to bodily fluids. To the extent that due process issues<br />

are involved in bodily fluid extractions, Rule 312 provides adequate<br />

protections.<br />

The privilege against self-incrimination does not protect a person<br />

from being compelled by an order or forced to exhibit his or<br />

her body or other physical characteristics as evidence. Similarly,<br />

the privilege is not violated by taking the fingerprints of an<br />

individual, in exhibiting or requiring that a scar on the body be<br />

exhibited, in placing an individual’s feet in tracks, or by trying<br />

shoes or clothing on a person or in requiring the person to do so,<br />

or by compelling a person to place a hand, arm, or other part of<br />

the body under the ultra-violet light for identification or other<br />

purposes.<br />

The privilege is not violated by the use of compulsion in<br />

requiring a person to produce a record or writing under his or her<br />

control containing or disclosing incriminating matter when the<br />

record or writing is under control in a representative rather than a<br />

personal capacity as, for example, when it is in his or her control<br />

as the custodian for a non-appropriated fund. See, e.g., Para. 150<br />

b of MCM, 1969 (Rev.); United States v. Sellers, 12 U.S.C.M.A.<br />

2 6 2 , 3 0 C . M . R . 2 6 2 ( 1 9 6 1 ) ; U n i t e d S t a t e s v . H a s k i n s , 1 1<br />

U.S.C.M.A. 365, 29 C.M.R. 181 (1960).<br />

(b) Standing.<br />

(1) In general. Rule 301(b)(1) recites the first part of the third<br />

paragraph of Para. 150 b, MCM, 1969 (Rev.) without change<br />

A22-5

Hooray! Your file is uploaded and ready to be published.

Saved successfully!

Ooh no, something went wrong!