Art. 31. The order need not be followed for it was illegal as compelled incrimination. A dissent contended that passive cooperation, not active, in producing the specimen placed the order outside Art. 31 and did not compel incrimination. The more recent case of U.S. v. Forslund 2 barred evidence of a uninanalysis where the accused was ordered to provide the specimen. The judge who had dissented in Jordan now concurred recognizing that the law had become fixed in this area. Art. 31 still poses some interesting possibilities on urine collection, however. Suppose urine is obtained after the warning has been dutifully issued through the use of a falsebottom toilet. Will the clever ingenuity of the investigator run afoul the Art. 31 protection? A more difficult situation emerged in U.S. v. Alexander. The accused wanted to cooperate but could not furnish a urine specimen. He was given liquids and the following day consented to catheterization. The chemical analysis revealed the use of narcotics. No error resulted in admitting this evidence for voluntary cooperation was demonstrated. The case loses some legal strength, however, because the accused judicially confessed to the crime. The requirement of voluntary cooperation in furnishing a urine specimen in a narcotics user's case was not met, however, where the accused provided the specimen while in a semi-conscious condition at the station hospital. He was in no condition to respond voluntarily to an inquiry whether he would furnish evidence against himself. An additional danger in acquiring urine specimens arises when an illegal search of an accused is made. As the result of the discovery of suspicious narcotics articles, a urine specimen was obtained voluntarily from an accused. Admission of this evidence against the defendant was error. The scientific evidence was the byproduct of the illegal search SO it was inadmissible." EXTRACTING BLOOD: Blood, unlike urine, provides a more serious challenge. Blood requires extraction. Voluntary passing is not possible. An order of a superior officer to remove the shirt and submit to a blood test for alcohol determination is illegal. Actions by the accused as well as verbal utterances are considered "statements" against one's self as expressed in Art. 31, the Court of Military Appeals held in U.S. v. Mus 2. 10 USCMA 8, 27 CMR 82 (1958). 3. ACM 13419, 24 CMR 533 (1956), petition for review by USCMA denied, 24 CMR 311 (1957). 4. U.S. v. McClung, 11 USCMA 754, 29 CMR 570 (1960). 5. U.S. v. Williams, ACM 15962, 28 CMR 736 (1958). 8 guire. A later case in a lower military court, nevertheless, has held admissible the blood alcohol test results even though the blood was extracted while the accused was in a semi-conscious condition, unable to give or withold consent. " In resting the decision on the U.S. Supreme Court decision in Breithaupt v. Abram this lower military tribunal failed to distinguish an important element. Breithaupt involved the right of a state under the 14th Amendment to extract blood from an unconscious truck driver, to test for the blood alcohol level, to admit into evidence and to convict the accused of traffic manslaughter. The U.S. Supreme Court held this action constitutional for the state, but no decision was made on the right of the Federal government to do this under the 5th Amendment due process clause. This important distinction had been recognized by the Court in the earlier Musguire case. COLLECTING BREATHS: Collection of the accused's breath could give rise to an interesting case under Art. 31. An order to blow breath into a superior officer's face to determine any alcoholic smell has been considered in one dissenting opinion to be not violative of the protection against incriminating evidence. Since the military law places heavy emphasis on the active duty to warn the accused as well as to prevent compulsory incrimination, involuntary breath collection for machine testing of blood alcohol would appear to be invalid. Blood alcohol determination by the acquisition of urine, blood or breath has run a different course in the civil jurisdiction. Implied consent laws operate constitutionally in several states already. A traffic offender suspected of intoxication is requested to volunteer for blood extraction. His refusal becomes a ground for withdrawing his driver's license. The voluntary nature of the accused's consent under such a procedure raises some doubts. Civil courts have also been much less concerned about trickery in acquiring urine specimens in traffic cases. Breath machines are in wide use and solidly legal.10 The crux of the difference in the approaches to extraction of body fluids or breath by the military and civil authorities rests in Art. 31. Military decisions make no mention of the high quality of the scientific test to determine the physical condition; civil decisions do. The social 6. 9 USCMA 67, 25 CMR 329 (1958). 7. U.S. v. Ross, CM 403401, 29 CMR 612 (1959). 8. 352 U.S. 432 (1957). 9. U.S. v. McCann, 8 USCMA 675, 25 CMR 179 (1958). 10. Donigan, CHEMICAL TESTS AND THE LAW, Northwestern University, Traffic Institute (1957). problems created by alcohol intoxication or drug use also shape civilian courts' attitudes to acquisitions from the accused's body. In the military law these problems are not mentioned. Civil tribunals have de-emphasized the incriminating aspect of the acquisition; military courts under the Art. 31 provisions have placed incrimination as the paramount test. FORCING HANDWRITING: With the rapid developments in the forensic sience area of questioned documents, an accused is often requested to supply handwriting exemplars. Under this acquisition for scientific determination, in contrast to the extraction of body fluids, no violation of the integrity of the human body occurs. No physical danger to the accused arises. Currently the forceful acquisition of such specimens is prohibited in military law although the history of this matter reflects a decided change in attitude. In U.S. v. Minnifield 11 the Court of Military Appeals overruled an earlier decision 12 as it held an accused's handwriting sample to be equivalent to a "statement” under Art. 31. A vigorous dissent refused to equate the sample handwriting as a "statement" and preferred to retain the prior law on the subject. The sample is not like a confession. The meaning of the words are not the evidence but rather the graphic symbols. The physical integrity of the human body is not violated. No physical coercion is performed. A high degree of trustworthiness in the scientific tests is available. Here the dissenting military judge displays reasoning similar to the civil courts in the fluid extraction cases previously discussed. Under situations where the accused provides handwriting samples subsequent to denial of his right to consult counsel, the issue of voluntariness under Art. 31 also arises. Military decisions require the trial tribunal to determine this issue. The handwriting specimen need not be violative of Art. 31 even where counsel has been denied, one case held.13 Another decision stated that the military rule, which permits the compelling evidence of guilt to override a failure to warn the accused properly of his rights, cannot be applied to the incident where the investigator takes the handwriting exemplar after an improper warning.14 COMPELLING SPEECH: The Court of Military Appeals has recognized that compulsion of the accused to submit to a voice identification test 11. 9 USCMA 373, 26 CMR 153 (1958). 12. U.S. v. Ball, 6 USCMA 100, 19 CMR 226 (1955). 13. U.S. v. Pender, ACM 15193, 26 CMR 901 (1957). 14. U.S. v. Cazenave, CM 401902, 28 CMR 536 (1959). by speaking into a telephone can violate the selfincrimination privilege. If no threat, coercion or unlawful inducement be applied, the test results are admissible, however." EXPOSING THE BODY EXTERIOR: Greater freedom is given the investigator to acquire evidence for scientific analysis from the exterior of the accused's physical body. Involuntary fingerprinting does not violate the privilege of self-incrimination. This taking is analagous to visible observation of the outer body and clothing for incriminating signs which is lawful under Art. 31.16 An important decision in U.S. v. Morse 17 introduced the legality of acquisition of scientific data in an interesting manner. To identify the unknown person rifling a vending machine, a CID agent inserted twenty coins painted with a fluorescent paste and a powder which leaves a blue stain on hands and clothing. Subsequently, the machine was again rifled. Nine persons with access to the vending apparatus were called. The agent viewed each person's hands. One person displayed blue stains. Under ultraviolet light this person's gloves fluoresced. Then, the accused was advised of his rights under Art. 31. To observe what is open or patent in sunlight or artificial scientific light is neither a search nor a statement, the court held. The investigator must warn the suspect, however, when he first asks for the location of clothes and then subjects them to scientific tests for blood. Here the accused's statement incriminates him by revealing the source of scientific evidence.18 One judge contended, however, that a search incidental to apprehension did not become illegal because of failure to warn. Medical examinations which discover needle marks on the arm may arouse suspicion of narcotics' use. The doctor can proceed to obtain a clinical history for treatment. UCMJ 31 (b) does not apply and the medical scientist can testify as to his opinion that the accused is a narcotics user even though no warning was issued.19 On the other hand one medical officer asked a suspect during a medical examination, without the required warning, if he smoked marihuana. The accused confessed he did. Neither the confession nor a scientific opinion based on the confession were admissible.20 MEASURING PHYSIOLOGICAL CHANGES: Another phase of the acquisition problem in scien 15. U.S. v. Brown, 7 USCMA 251, 22 CMR 41 (1956). 16. U.S. v. Bartlett, CM 403092, 28 CMR 589 (1959). 17. 9 USCMA 799, 27 CMR 67 (1958). 18. U.S. v. Williams, 10 USCMA 578, 28 CMR 144 (1959). 19. U.S. v. Baker, 11 USCMA 313, 29 CMR 129 (1960). 20. U.S. v. Saxton, SF NCM 56 01008, 22 CMR 714 (1956). tific evidence is to measure physiological body changes-blood pressure, respiration, skin moisture-to determine whether an accused is speaking truthfully. The lie detection apparatus is recognized as a valuable and valid investigation instrument by military tribunals. The results are inadmissible, but a confession stimulated by applying the test is not rendered inadmissible thereby. Evidence that an accused took a lie test is even admissible to indicate a confession is voluntary for it gives a reason for the confession.21 One particular aspect of the admission that a lie detection test has been given involves the effect on the judges. One judge, operating under par. 62b, MCM, 1951, disclosed in open court that he was aware of certain lie detection tests which could be the basis for a challenge against him so he was excused. Under these circumstances the seeds of prejudice were planted in the minds of the other court members. A new trial had to be granted.22 This case emphasizes the real difficulty with all lie detection tests, civil or military: the test replaces the impartial tribunal as the decider of the legal issue of fact. OBSERVING MENTAL CONDITIONS: The final area of acquisition of facts for scientific evaluation to provide legal evidence incorporates extraction of words and acts to determine an accused's mental condition. Two lower court martial cases have stated the Art. 31 warning does not apply when a military doctor is performing a psychiatric examination to determine the mental condition of the accused.23 PRESERVATION IN CIVIL ENFORCEMENT to preserve the chain of custody of scientific evidence is a greater problem than in military criminal justice. Military discipline and effective criminal investigation training are perhaps the reasons. The legal rule under both jurisdictions is precise and absolute. Who controls the scientific evidence from the crime scene to the courtroom must be documented and approved. To preserve the scientific integrity of the material and to prevent the possibility of unscientific contamination or improper identification are the reasons therefor. As one military tribunal graphically stated:24 21. U.S. v. Johnson, WC NCM 58-01416, 28 CMR 662 (1958). See also U.S. v. Haynes, ACM 13813, 24 CMR 881 (1957). 22. U.S. v. Richard, 7 USCMA 46, 21 CMR 172 (1956). 23. U.S. v. Johnson, ACM 15164, 27 CMR 932 (1957), petition for review by USCMA denied, 27 CMR 512 (1959); U.S. v. Larkin, CM 400805, 27 CMR 766 (1959), petition for review by USCMA denied, 28 CMR 414 (1959). 24. U.S. v. Spencer, CM 389398, 21 CMR 504, 510 (1956). Trial counsel should have followed the method employed in United States v Ford (No. 4192), 4 USCMA 611, 16 CMR 185, wherein the laboratory technician who ran the test which ends up with the spots on the final filter charts was called as a witness, gave his professional qualifications, testified that before performing the described extractions, he checked and determined that the laboratory equipment used was clean and free from contamination, that during the course of the processing the specimen was not contaminated in any way, described the steps and procedures taken by him, and that he delivered the end product filter sheets, which he identified, to the toxicologist. With that foundation, the toxicologist's opinion based on the final filter sheets was received as admissible with a properly proved foundation. Testimony of each person handling the evidentiary material is not necessary. If proper labelling prevails and no discrepancies occur in identification in court, the tribunal will sustain the chain of custody as a foundation for the scientific testimony.25 If an officer signs a scientific report as laboratory officer, he must testify either in person or by deposition.26 He is a more crucial witness than the mere handler of the scientific material whose absence may be replaced with proper labelling provided no discrepancies appear. Another factor to be remembered as one court martial emphasized is that crime laboratories unlike hospitals or dispensaries cannot generally obtain additional valid specimens. The prosecution, therefore, must assume the affirmative duty to "show the custody of the suspected item, and the absence of any substantial opportunity for mistake as to its identity." 27 EVALUATION CAREFUL CASE PREPARATION when scientific evidence is available demands evaluation of the quality of the science which produced the evidence. Testimony utilized for proof of nonscientific facts often relies principally on quantity-four witnesses who observed an event in a particular manner are more acceptable than two witnesses who saw the same event in a different manner. The quality of the testimony is not entirely forgotten, but quantity plays a larger role. Scientific evidence assumes legal stature in direct proportion to the scientific ability of the expert witness. Often scientific opinions are in conflict. The court must resolve these conflicts. To evaluate the expert witness testimony be 25. U.S. v. Bass, 8 USCMA 299, 24 CMR 109 (1957). comes a heavy challenge. Several cases underscore this basic problem of careful evaluation. In U.S. v. Soule 28 one psychiatrist diagnosed the accused as suffering from pathological intoxication which barred his seeing consciously the difference between right and wrong and adhering to the right. Two other psychiatrists stated pathological intoxication was not a recognized diagnosis, and no evidence of a psychiatric disease, psychosis, neurosis, or significant character disorder could be found in the accused. One of these two psychiatrists could not determine if the defendant knew right from wrong. The other stated the soldier did know this difference. The court resolved the issue by finding no substantial issue of insanity presented because alcoholism not amounting to a psychosis is not a mental disease which completely deprives the accused of his abilities to distinguish right from wrong. In a medical area acknowledged to present a controversial scientific matter, the tribunal can approach truthful justice only after careful evaluation of the opportunity of the medical expert to acquire facts. A prosecution expert psychiatrist who based his opinion on observation, interviews and tests conducted over two periods of two weeks each should be given higher evaluation than a defense expert who saw the accused for two hours one time with no tests being given.29 Mental problems are not the sole source of judicial concern. Physiological matters can create scientific differences in the experts' opinions. Establishing the time of death, often critical in homicide cases, has led to conflicting testimony. One doctor in U.S. v. Hurt 30 supplied a time estimate based on the interval of time between the completion of the process of rigor mortis and its dissolution. The doctor who performed the autopsy, however, relied on the extent of post mortem changes, the place where the autopsy was performed, the climate, the decomposition and the empty stomach of the victim who had eaten at a specific time before death. The court-martial placed the time of death as testified to by the autopsy surgeon. Not only an aceptable decision, but a wise one based on the quality of the evidence. Often the method of communicating the quality of scientific evidence can be important. The triers of fact being laymen require visual aids. Tribunals should be allowed to make broad use of photographs in color or black and white and 28. CM 401316, 27 CMR 706 (1958). 29. U.S. v. Oakley, CM 398074, 28 CMR 451 (1958). 30. 9 USCMA 735, 27 CMR 3 (1958). See also U.S. v. Gurno, CM 398646, 26 CMR 556 (1957). sketches of the human body when relevant. Like civil courts, military tribunals have minimized the danger of inflaming prejudices in homicide 31 32 or rape cases with the admission of relevant photographs or diagrams. ADMISSION THE TOUCHSTONE OF scientific evidence in criminal justice proceedings is the expert witness. Upon his being properly qualified rests the admissibility of evidence and what may be the crucial proof of the crime. Scientific evidence is often reduced to writing in the form of laboratory reports. When such reports are specifically prepared for trial, they do not qualify under the "business entry" exception to the hearsay rule. A blood alcohol analysis report made in preparation for prosecution at an Army hospital was held inadmissible as such.33 The expert scientific witness must display special knowledge concerning the scientific matter in evidence. Education and experience are the two sources to authenticate this specific. Where a witness has broad scientific background the tribunal can permit testimony on a narrow specialty. In one case a medical officer was permitted to testify without specially qualifying as an expert on sobriety. Special education was unnecessary to qualify as a sobriety specialist.34 Even lacking education, experience can qualify a person as a scientific expert. One layman was allowed to testify to the identity of marihuana used by defendant. This layman had himself smoked marihuana, had associated with others who did so in his presence fifty to one hundred times. He described how he identified the leaves and how smokers reacted. Finally he correctly analyzed two piles of leaves during the trial. With this ground laid, he qualified for the scientific identification that what defendant had used was marihuana. 35 Occasionally vital, real evidence is destroyed. Photography, a simple application of science, can be helpful. To substitute photographs of clothing lost in a rape case is permissible.36 A refusal to take any scientific test or to submit to such a test can imply the truth of what the test might prove, e.g., lie detection test. To allow admission of such refusal has been pre31. U.S. v. Harris, 6 USCMA 736, 21 CMR 58 (1956). See also U.S. v. Gibson, ACM 9073, 17 CMR 911 (1954). 32. U.S. v. Bennett, 7 USCMA 97, 21 CMR 223 (1956). 33. U.S. v. Westcott, CM 393521, 23 CMR 468 (1956). 34. U.S. v. Saldana, NCM 56 00176 (SF), 21 CMR 551 (1955). 35. U.S. v. Jones, CM 385050, 20 CMR 438 (1955), affirmed by CMA on other grounds, 22 CMR 73 (1956). 36. U.S. v. Koleske, ACM 13562, 24 CMR 652 (1956). cluded by the privilege against self-incrimination, however.87 With reasonable care the admission of scientific data can be achieved in most criminal cases. WEIGHT THIS ASPECT OF science in criminal justice will become the most important as criminal law continues its development. The high degree of truth and accuracy which accompany science provide heavy weight in the crucial area of legal proof. As one tribunal has stated: 38 On the basis of such evidence standing as it is, unrebutted and uncontradicted, we can only conclude, as did the court martial, that such testimony is not only credible, but of sufficient weight to establish the presence of morphine in the urine specimen examined beyond a reasonable doubt. In simple terms scientific evidence alone can often carry the burden of proof beyond a reasonable doubt. The evidentiary link in one murder case connecting the wrongful act of shooting by the defendant and the killing of the victim represented another value of science: it can operate as circumstantial evidence. Where direct testimony was weak as to the shooting, ballistics evidence connected the death bullet in the victim's body with the accused's pistol. The inference of circumstantial evidence was sufficient to carry the proof beyond a reasonable doubt that a homicide occurred.39 The evidence of circumstance alone is sufficient to convict in a crime where such evidence eliminates every reasonable hypothesis but that of guilt. And each circumstance standing alone need not be sufficient to prove beyond a reasonable doubt. "The decisive test is the cumulative effect of all circumstances considered in their entirety." 40 Scientific evidence in military justice displays its weakest front in the psychiatric fields. The nature of man's knowledge in this area is yet not decisive. Truth and accuracy of scientific facts are difficult if not impossible to acquire. Even where uncontradicted defense evidence of the accused's insanity is present, it "does not necessarily mean that reasonable men must entertain a reasonable doubt as to the accused's sanity." "1 After trial, scientific tests also have played a significant role. The staff judge advocate's re 37. U.S. v. Cloyd, ACM 14909, 25 CMR 908 (1957). 38. U.S. v. Yates, ACM 8695, 16 CMR 629, 636 (1954), petition for review denied by USCMA, 16 CMR 292 (1954). 39. U.S. v. Harris, CM 398251, 25 CMR 584 (1957). view of the proceedings are not illegal when matters outside the record are incorporated even when they represent scientific tests like lie detection.12 A convening authority 43 and a reviewing authority" both have the legal right to consider post-trial lie detection tests to disapprove the finding of guilty. Although to affirm such findings no such use of science is permitted. CONCLUSION The real importance of science is in the identification of the innocence of suspect either as a by-product in establishing the guilt of another, or by manifesting directly the innocence of the guiltless suspect. In building a system of justice to achieve this goal the danger confronting us still remains that in our passion for science to acquire truth, human dignity may be destroyed. Let our watchword be: Science is made for man, not man for science. 42. U.S. v. Inman, CM 389999, 21 CMR 480 (1956); U.S. v. Martin, 9 USCMA 84, 25 CMR 346 (1958). 43. U.S. v. Mazurkewicz, CM 392005, 22 CMR 498 (1956). 44. U.S. v. Judd, ACM 14780, 26 CMR 881 (1957). Lt. Commander Richard E. Blair, USN, was presented the Navy Lawyer Award at the Annual Awards Luncheon of the Navy League in Chicago on 16 May 1962. The award, which carries a cash stipend of $500, was given to Lt. Commander Blair for his article entitled "Court-Martial Jurisdiction Over Retired Regulars: An Unwarranted Extension of Military Power." His article which was judged and selected as the best of the year was published in the Georgetown Law Review, Volume 50, Fall 1961, issue. The objective of the Navy lawyer competition on published writings is to encourage meritorious professional publication by Navy law specialists on active duty and to focus attention on law as an important tool in the performance by the Navy of its Mission. Details of the 1962 competition may be found in a soon to be released SECNAV Notice. |