he had made the statements himself. Counsel by the nature of his services has implied authority to speak and act on behalf of the accused during the trial in all matters of procedure. Here, however, the accused had considerably more at stake than a mere procedural matter. (Citing MCM, 1951, par 150b; U. S. v. Cambridge (No. 1850), 3 USCMA 377, 12 CMR 133; Dick v. U. S., 40 F2d 609, 611; Joseph v. U. S., 145 F2d 74; U. S. v. Denniston, 89 F2d 696.) - the fact that the assistant defense counsel stated that the defense had no objection did not relieve the law officer of the responsibility to explain to the accused his rights under UCMJ, Art 31. Ordinarily the court need not volunteer advice to the accused, however, the right of an accused to remain silent or testify as a witness must be explained in open court and instructing the accused in this case to sign his name was compelling him to testify as a witness without his request to do so. (Citing MCM, 1951, par 148e, p 278; U. S. v. Phillips (No. 1376), 2 USCMA 534, 10 CMR 32.) - there is no doubt that the privilege against self-incrimination may be waived. However a waiver of such a substantial right must be informed and intelligent and basic constitutional protections should not, especially in criminal cases, be suspended by mere inferences from indifferent facts. Under the circumstances of this case it is concluded that the defense counsel's tacit assent to comply with the law officer's instructions amounted to no more than a failure to object in the face of the law officer's mandate. (Citing U. S. v. Young (No. 1015), 2 USCMA 470, 473, 9 CMR 100, 103; Johnson v. Zerbst, 304 US 458, 82 L ed 1461, 58 S Ct 1019; Powell v. Alabama, 287 US 45, 77 L ed 158, 53 S Ct 55, 84 ALR 527; U. S. v. Welch (No. 196), 1 USCMA 402, 407, 3 CMR 136, 141; U. S. v. Clay (No. 49), 1 USCMA 74, 79, 81, 1 CMR 74, 79, 81; Wood v. U. S., 128 F2d 265, 277; Bruno v. U. S., 308 US 287, 293–294, 84 L ed 257, 60 S Ct 198.) ACM 7472, Henry (1953) 13 CMR 690. To prove an alleged larceny through the use of forged deposit slips, the prosecution introduced specimen signatures of the accused. The only evidence bearing directly on the voluntariness of the signatures was the testimony of the officer who witnessed the taking of the specimens that "to all appearances" the accused was "cooperative and helpful" when asked to sign his name. Held that: in view of the fact that there was nothing in the record indicating that the specimen signatures were made involuntarily, proof of voluntariness was not necessary and, furthermore, there was no necessity for affirmative proof that a proper warning had been given the accused. - the furnishing of a sample of handwriting by an accused or suspected person amounts to an admission against interest and, for this reason, a requirement exists that a person accused or suspected of an offense be informed of the nature of the accusation and of his rights under UCMJ, Art 31 (b), prior to being requested in an official pretrial investigation to make and furnish samples of his handwriting. (Cf. CM 362352, Williams, 13 CMR 158.) - before an admission against interest may be received into evidence, proof of neither voluntariness nor that Art 31(b) was complied with need be produced. However, if there is any indication that the admission was involuntary, then the prosecution has the burden of affirmatively proving both voluntariness and Art 31(b) compliance. (Citing ACM S-6031, Ketchum, 10 CMR 930; U. S. v. Seymour (No. 2728), 3 USCMA 401, 12 CMR 157. In this regard, something more than the unsupported assertions of the defense counsel is required to present a substantial issue as to voluntariness. (Citing CGCMS 19351, Damaske, 4 CMR 465.) - the warning of an accused of his rights under UCMJ, Art 31, is mandatory prior to eliciting any self-incriminatory statement from him during an official investigation, regardless of whether the evidence amounts to a full confession or no more than an admission against interest. However, in the case of an admission, where there is no indication that such was involuntary, and where there is nothing in the record which shows that an appropriate warning was not given, it may be presumed that the accused was properly advised of his rights under the article prior to making the admission. Where the record clearly indicates that no warning had in fact been given, such presmption is immediately rebutted (U. S. v. Wilson and Harvey (No. 647), 2 USCMA 248, 8 CMR 48). in the instant case, in view of the fact that the record is silent with respect to whether at any time immediately prior to the accused's admissions he was advised that he could not be compelled to produce any evidence which might tend to incriminate him, the effect of the evidence is as consistent with the presence of warning as with its absence, thus leaving undisturbed the presumption that the accused was so advised. ACM 7501, Rush (1953) 13 CMR 792. Compare CM 365303, Wetzell, EVID § 187.1. On the trial of the accused for a number of worthless check offenses, the trial counsel asked the accused to submit samples of his handwriting. The defense counsel stated that the accused had no objection and the accused made the samples. When the samples were offered in evidence, the defense counsel again stated there was no objection and the law officer admitted them into evidence. The case was tried prior to the date the United States Court of Military Appeals held invalid par 150 MCM, 1951, providing that requiring handwriting samples was not a violation of the privilege against self-incrimination. The prosecution presented the testimony of various persons who had cashed the checks for the accused. An official of the bank where the accused kept his account testified as to the balance of the accused's account on various dates, the fact that the checks were dishonored on presentation for insufficient funds. The original signature card for the account was introduced and the witness expressed the opinion that the signature on the card and those on the checks were written by the same person. In a pretrial statement the accused admitted recognizing his signature on at least two of the checks and on the stand, when the trial counsel showed him each check and asked him if he had written it, he said that he had. Held that: - in view of the state of the law on the subject on the date of trial it is clear that the trial counsel was basing his request on the cited provision of the Manual and that the law officer, the defense counsel and the accused himself were laboring under the belief that the provision of the Manual was the law on the subject and the request was in order and perfectly legal. Accordingly, a contention that there was a voluntary waiver of the right against self-incrimination will not be entertained since any waiver of a substantial right must be informed and intelligent. (Citing U. S. v. Welch (No. 196), 1 USCMA 402, 3 CMR 136; MCM, 1951, par 140; ACM 6821, Gaines, 11 CMR 783.) - while it is manifest that the violation of the accused's rights was in no way willful, they were nevertheless violated and the board has no hesitation in labeling the proceedings herein patent error. (See U. S. v. Rosato (No. 1375), 3 USCMA 143, 11 CMR 143; U. S. v. Eggers (No. 1990), 3 USCMA 191, 11 CMR 191.) — with the mountain of evidence facing the accused, it cannot be seriously contended that his taking the stand in his own defense was other than voluntary in every sense of the word and accordingly, under the circumstances of this case, the original error in obtaining the illegal specimens of the accused's handwriting was cured by his judicial admissions and the other evidence of record. (Citing U. S. v. Hatchett (No. 1137), 2 USCMA 482, 9 CMR 112; U. S. v. Collier (No. 467), 1 USCMA 575, 5 CMR 3, concurring opinion. Distinguishing ACM 7118, Wellington, 12 CMR 753; ACM S-7020, Keyes, 12 CMR 927, and ACM 7472, Henry, 13 CMR 690.) ACM 7344, Stoess (1954) 14 CMR 551. The accused was convicted of stealing a watch. In an attempt to prove the signature on a pawn ticket was the accused's, the trial counsel requested that the accused subscribe his signature five times on a piece of paper which had been marked as a prosecution exhibit. The defense objected on the ground that no handwriting expert had been called for the purpose of comparing the pawn ticket signature with any other the accused might execute. This objection was overruled and the accused, at the law officer's direction, complied with the trial counsel's request. The government had previously offered in evidence a detailed confession by the accused in which he admitted having taken the watch unlawfully and having pawned it. On the stand the accused admitted that prior to making the statement he had been informed of his rights under UCMJ, Art 31, that he comprehended these rights fully, and that he understood as well that the statement might be used against him in a trial by court-martial. He conceded no threats of force induced the confession and that it was made voluntarily. The confession was received by the law officer. This confession contained the accused's signature in eight different places. Held: Al though the defense counsel's objection was based on the wrong premise, the offering of an objection was sufficient to show that the accused did not provide the handwriting sample voluntarily. Moreover, at the time of the trial no pronouncement from the Court of Military Appeals had indicated the invalidity of that portion of par 150b, MCM, 1951, providing that an accused could be required to furnish samples of his handwriting. Under such circumstances, there was no waiver of rights through failure to object to a procedure specifically authorized by the Manual. (Citing U. S. v. Rice [CM 366858, recon], 14 CMR 379.) Held also: Under the circumstances, the findings of guilty must be approved notwithstanding the fact that the accused was improperly required to execute the handwriting specimens. Since the accused signed an extrajudicial confession and, on the stand, conceded the voluntary execution of the confession, at the time he was compelled to furnish the samples of his handwriting there was already before the court multiple voluntarily executed exemplars of his signature. Thus, the handwriting exemplars furnished in open court constituted not merely cumulative evidence, but repetitious evidence as well. In short, every shred of evidence reflected in the record would be admissible on retrial save that, instead of thirteen signature samples, the court would be limited to eight for use as a basis for handwriting comparison. That the accused would be in any way better protected through a confrontation by this lesser number of signatures is difficult to conceive. Accordingly, a retrial would be useless. (Citing U. S. v. Lucas (No. 7), 1 USCMA 19, 1 CMR 19; U. S. v. McElroy (No. 2262), 3 USCMA 606, 14 CMR 24 (concurring opinion); cf. U. S. v. Rosato (No. 1375), 3 USCMA 143, 11 CMR 143; U. S. v. Eggers (No. 1990), 3 USCMA 191, 11 CMR 191.) [Quinn, C.J., dissenting, citing U. S. v. Greer (No. 3155), 3 USCMA 576, 13 CMR 132; U. S. v. Eggers (No. 1990), 3 USCMA 191, 11 CMR 191; U. S. v. Wilson and Harvey (No. 647), 2 USCMA 248, 8 CMR 48; U. S. v. Fisher (No. 3318), 4 USCMA 152, 15 CMR 152; U. S. v. Sutton (No. 1718), 3 USCMA 220, 11 CMR 220 (dissenting opinion).] United States v. Morris (No. 3834), 4 USCMA 209, 15 CMR 209, remanding CM 365623, Morris, 12 CMR 510. § 7. As to Books, Documents, and Other Articles § 7.1. Generally. On a trial for signing a false application for dependent's allotment and making a false claim for basic allowance for quarters, the prosecution introduced into evidence a photostatic copy of a marriage certificate purporting to show a marriage between the accused and a named person. The accused had been ordered by one of the assistants in the personnel office to bring in a marriage certificate to support his claim for dependent's allowance. When the accused brought in the document, it appeared that there were alterations. The personnel officer initiated action to learn the true nature of the document as shown by the record of the county office of the county where the marriage purportedly took place. Upon receipt of a communication from the recorder of the county it was determined that the document presented by the accused had in fact been altered and that the accused was not entitled to a dependent's allowance. The defense contended that the accused was suspected of an offense and that he should have been warned as provided by UCMJ, Art 31(b), when he was directed to bring in the marriage certificate. Held: On these facts, UCMJ, Art 31 (b), has not been violated and in fact is not related to the problem. Further, the direction to bring in the document was not an unlawful search and seizure and the accused was not compelled to incriminate himself since there was no compulsory production of the marriage certificate as it was voluntarily produced by the accused to support his claim and also since it did not form the basis of the offense of which the accused was charged. (Distinguishing U. S. v. Rosato (No. 1375), 3 USCMA 143, 11 CMR 143; Boyd v. U. S. 116 US 616, 29 L ed 746, 6 S Ct 524.) NCM 257, Turpin (1953) 13 CMR 537. § 9. Matters of Identification, Generally § 9.27. Police line-up; voice identification. The record showed that a rape victim listened to the voices of five soldiers and identified two (that of the accused and another) as sounding similar to the voice of her assailant. She was then given the opportunity to view the five and picked out the accused as her assailant. At the trial she was positive that the accused was the one. There was no showing that the accused had been compelled to utter words involuntarily. The defense counsel made no objection at the trial when the testimony of the victim as to the manner of identification was elicited. Moreover, the record showed that the day before the identification, the accused, after being fully warned of his right to remain silent, voluntarily admitted sexual intercourse at the scene and on the night in question. Held: There is no doubt but that an accused may be required to be present in a line-up for the purpose of identification and, although it is questionable whether an accused can be compelled to utter words for the purpose of voice identification, the evidence as to voice identification was admissible in this case since there was no showing that the words were uttered involuntarily and there was no objection. Furthermore even assuming arguendo that it was inadmissible in the absence of an affirmative showing of voluntariness, the error was not prejudicial in view of the victim's positive visual identification of the accused, the accused's admission of intercourse, and other compelling evidence of guilt. (Citing U. S. v. Eggers (No. 1990), 3 USCMA 191, 11 CMR 191; MCM, 1951, subpar 150b, p 284.) It is apparent that an accused may be required to be present in a line-up for the purposes of identification for that requires only passive cooperation and is not violative of UCMJ, Art 31(a), but there is some doubt that the accused can be compelled to utter words for the purposes of voice identification for this requires active participation and affirmative conduct on the part of the accused which, if compelled, violates the Code's proscription against compulsory self-incrimination. In this case the board would be constrained to hold that the evidence as to voice identification was inadmissible if the record revealed that |