[337]*337Opinion
DARDEN, Judge:
Following his plea of guilty, the appellant was found guilty by a general court-martial at Fort Lewis, Washington, of both forgery and larceny— six counts of the former, five of the latter — in violation of Articles 123 and 121, Uniform Code of Military Justice, 10 USC §§ 923 and 921, respectively. The court imposed a sentence of dishonorable discharge, total forfeitures, and confinement at hard labor for eight years. The period of confinement was then reduced by the convening authority to three years and by the board of review to eighteen months. The issue presented by this appeal is:
“WHETHER PREJUDICIAL ERROR WAS COMMITTED AGAINST APPELLANT WHEN TRIAL COUNSEL WAS PERMITTED TO IMPEACH HIM ON CROSS-EXAMINATION BY THE USE OF A PRETRIAL STATEMENT FOR WHICH NO SHOWING HAD BEEN MADE OF COMPLIANCE WITH TEMPIA.”
The record of trial shows that after findings, the accused testified in mitigation that he desired to remain in the service. Subsequent cross-examination by trial counsel included the following exchange:
“TC Isn’t it a fact that while confined at the post stockade after the 29th of August, you had to fill out a questionnaire at the post stockade?
“A Yes, sir.
“Q Isn’t it also a fact that in answer to the question on this form, ‘Do you wish to return to duty to complete your military obligation?’, your answer was ‘No.’?
“A Sir, at that time I had just entered the stockade. I didn’t know what was going on, why it was going on. I was upset. I was scared. The guards, as a new eonfinee, were testing me to see if I would take a swing at one of them. Now after three, almost three and a half months, I have done a lot of thinking. I know I have done wrong. I will take whatever punishment they give me, if it is three years, if it is thirty years, but all I ask is, send me back to duty.”
Appellate defense counsel insist that before a pretrial statement can be used, the Government must establish compliance with the warning requirements set forth in United States v Tempia, 16 USCMA 629, 37 CMR 249, “notwithstanding the absence of an objection by defense counsel.” United States v Lincoln, 17 USCMA 330, 38 CMR 128. The pretrial statement of this appellant is said to be the product of a “custodial interrogation,” for when it was taken, Caiola was held in the stockade and when questioned by stockade personnel responded with an admission against interest. For subsequent use of the statement in “an integral part of the military trial” the application of constitutional safeguards was necessary.
They argue that incriminating statements within the meaning of Tempia include testimonial evidence not necessarily probative of the unlawful conduct alleged. Why this statement was elicited is arguable, say the defense, but they maintain that purpose becomes immaterial where the answers gained damage the accused at trial. And, because military trials allow the jury to impose punishment, it is an integral part of the court-martial to which the rationale of Tempia should apply. Thus, trial counsel must show on the record full compliance with Miranda v Arizona, 384 US 436, 16 L Ed 2d 694, 86 S Ct 1602 (1966), and United States v Tempia, supra, requirements. The argument continues that if the Court permits the practice of allowing stockade personnel to compile information usable later at courts-martial, a defendant will be discouraged from testifying, contrary to his “right to speak before sentence is imposed upon him.” The evidentiary value of such evidence is insufficient to justify such a restriction.
Appellate Government counsel agree that the provisions of Article 31, Code, supra, 10 USC § 831, and the Fifth [338]*338Amendment apply to situations wherein a suspect is questioned regarding criminal endeavors. They acknowledge that accused was obviously a suspect, being in pretrial confinement. On the other hand, appellate Government counsel note that the question related to duty status, was foreign to any suspected offense, and was asked not in furtherance of an investigation. Accordingly, in appellate Government counsel’s view there was no requirement that Caiola be advised of his right to remain silent or to obtain counsel. The argument also suggests that in this setting such demands could never be fully met, for the questioner has neither knowledge nor suspicion of an offense, and hence he could not possibly provide the required preliminary advice.
Appellate Government counsel stress that Miranda is intended to discourage illegal police activities. There is no reason to apply Miranda in this case, absent a wrong that needs to be rectified. Prison officials cannot preface every conversation with Article SI warnings. This would be an extension of Miranda that would provide immunity for anything a prisoner might utter. Counsel for the Government add that here a duty to warn was nonexistent, for Caiola’s statement was not incriminating. They contend that not all statements taken without proper warning are proscribed. Other Federal courts adopt this view. Cf. Martin v United States, 400 F2d 149, 153 (CA 9th Cir) (1968).
The Government urges that the law officer correctly allowed impeachment of Caiola on a matter unconcerned with the merits of the ease.
I accept, for the purpose of this opinion, appellant’s contention that the record of trial satisfactorily reflects a confrontation between the accused and military authorities that has all the ingredients of a “custodial interrogation,” within the meaning of that term as used in Miranda. Thus, there is no need to identify and measure precisely the components that constitute such a situation. Furthermore, there is no reason for a prolonged consideration of either the character of the appellant’s pretrial responses or their relationship to the offenses charged.
To bring the present issue to a proper focus, however, it is appropriate to note again that military jurisprudence exists and develops separate and apart from “the ordinary Federal and State judicial systems in this country,” even though their responsibilities may at times be parallel. United States v Tempia, supra, at page 633. Thus, in the civilian sphere, punishment is fixed by the trial judge, in the absence of a statute either permitting or requiring the jury to fix punishment. 53 Am Jur, Trial, § 288, and citations thereto. “Unless otherwise provided by statute, it is the duty of the court to impose sentence, or make such other disposition of the ease as required by law, after the facts have been decided by the jury.” Pope v United States, 298 F2d 507, 508 (CA 5th Cir) (1962).
In contrast, a court-martial is a two-step proceeding with a “dichotomy of purpose”; the second part, which occurs after findings of guilty, is concerned solely with the gathering and proffering of evidence intended to favorably impress the court members in their assessment of an appropriate punishment. In United States v Stivers, 12 USCMA 315, 317, 30 CMR 315, the Court said:
“The Manual for Courts-Martial, United States, 1951, expressly recognizes the vast difference between the proceedings regarding the merits of the case and those relating to sentence. Thus, with respect to the latter, it provides for relaxation of the rules of evidence and permits affidavits, certificates, and other writings of apparent reliability to be received on behalf of the accused. Manual, supra, paragraph 75c (1).
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[337]*337Opinion
DARDEN, Judge:
Following his plea of guilty, the appellant was found guilty by a general court-martial at Fort Lewis, Washington, of both forgery and larceny— six counts of the former, five of the latter — in violation of Articles 123 and 121, Uniform Code of Military Justice, 10 USC §§ 923 and 921, respectively. The court imposed a sentence of dishonorable discharge, total forfeitures, and confinement at hard labor for eight years. The period of confinement was then reduced by the convening authority to three years and by the board of review to eighteen months. The issue presented by this appeal is:
“WHETHER PREJUDICIAL ERROR WAS COMMITTED AGAINST APPELLANT WHEN TRIAL COUNSEL WAS PERMITTED TO IMPEACH HIM ON CROSS-EXAMINATION BY THE USE OF A PRETRIAL STATEMENT FOR WHICH NO SHOWING HAD BEEN MADE OF COMPLIANCE WITH TEMPIA.”
The record of trial shows that after findings, the accused testified in mitigation that he desired to remain in the service. Subsequent cross-examination by trial counsel included the following exchange:
“TC Isn’t it a fact that while confined at the post stockade after the 29th of August, you had to fill out a questionnaire at the post stockade?
“A Yes, sir.
“Q Isn’t it also a fact that in answer to the question on this form, ‘Do you wish to return to duty to complete your military obligation?’, your answer was ‘No.’?
“A Sir, at that time I had just entered the stockade. I didn’t know what was going on, why it was going on. I was upset. I was scared. The guards, as a new eonfinee, were testing me to see if I would take a swing at one of them. Now after three, almost three and a half months, I have done a lot of thinking. I know I have done wrong. I will take whatever punishment they give me, if it is three years, if it is thirty years, but all I ask is, send me back to duty.”
Appellate defense counsel insist that before a pretrial statement can be used, the Government must establish compliance with the warning requirements set forth in United States v Tempia, 16 USCMA 629, 37 CMR 249, “notwithstanding the absence of an objection by defense counsel.” United States v Lincoln, 17 USCMA 330, 38 CMR 128. The pretrial statement of this appellant is said to be the product of a “custodial interrogation,” for when it was taken, Caiola was held in the stockade and when questioned by stockade personnel responded with an admission against interest. For subsequent use of the statement in “an integral part of the military trial” the application of constitutional safeguards was necessary.
They argue that incriminating statements within the meaning of Tempia include testimonial evidence not necessarily probative of the unlawful conduct alleged. Why this statement was elicited is arguable, say the defense, but they maintain that purpose becomes immaterial where the answers gained damage the accused at trial. And, because military trials allow the jury to impose punishment, it is an integral part of the court-martial to which the rationale of Tempia should apply. Thus, trial counsel must show on the record full compliance with Miranda v Arizona, 384 US 436, 16 L Ed 2d 694, 86 S Ct 1602 (1966), and United States v Tempia, supra, requirements. The argument continues that if the Court permits the practice of allowing stockade personnel to compile information usable later at courts-martial, a defendant will be discouraged from testifying, contrary to his “right to speak before sentence is imposed upon him.” The evidentiary value of such evidence is insufficient to justify such a restriction.
Appellate Government counsel agree that the provisions of Article 31, Code, supra, 10 USC § 831, and the Fifth [338]*338Amendment apply to situations wherein a suspect is questioned regarding criminal endeavors. They acknowledge that accused was obviously a suspect, being in pretrial confinement. On the other hand, appellate Government counsel note that the question related to duty status, was foreign to any suspected offense, and was asked not in furtherance of an investigation. Accordingly, in appellate Government counsel’s view there was no requirement that Caiola be advised of his right to remain silent or to obtain counsel. The argument also suggests that in this setting such demands could never be fully met, for the questioner has neither knowledge nor suspicion of an offense, and hence he could not possibly provide the required preliminary advice.
Appellate Government counsel stress that Miranda is intended to discourage illegal police activities. There is no reason to apply Miranda in this case, absent a wrong that needs to be rectified. Prison officials cannot preface every conversation with Article SI warnings. This would be an extension of Miranda that would provide immunity for anything a prisoner might utter. Counsel for the Government add that here a duty to warn was nonexistent, for Caiola’s statement was not incriminating. They contend that not all statements taken without proper warning are proscribed. Other Federal courts adopt this view. Cf. Martin v United States, 400 F2d 149, 153 (CA 9th Cir) (1968).
The Government urges that the law officer correctly allowed impeachment of Caiola on a matter unconcerned with the merits of the ease.
I accept, for the purpose of this opinion, appellant’s contention that the record of trial satisfactorily reflects a confrontation between the accused and military authorities that has all the ingredients of a “custodial interrogation,” within the meaning of that term as used in Miranda. Thus, there is no need to identify and measure precisely the components that constitute such a situation. Furthermore, there is no reason for a prolonged consideration of either the character of the appellant’s pretrial responses or their relationship to the offenses charged.
To bring the present issue to a proper focus, however, it is appropriate to note again that military jurisprudence exists and develops separate and apart from “the ordinary Federal and State judicial systems in this country,” even though their responsibilities may at times be parallel. United States v Tempia, supra, at page 633. Thus, in the civilian sphere, punishment is fixed by the trial judge, in the absence of a statute either permitting or requiring the jury to fix punishment. 53 Am Jur, Trial, § 288, and citations thereto. “Unless otherwise provided by statute, it is the duty of the court to impose sentence, or make such other disposition of the ease as required by law, after the facts have been decided by the jury.” Pope v United States, 298 F2d 507, 508 (CA 5th Cir) (1962).
In contrast, a court-martial is a two-step proceeding with a “dichotomy of purpose”; the second part, which occurs after findings of guilty, is concerned solely with the gathering and proffering of evidence intended to favorably impress the court members in their assessment of an appropriate punishment. In United States v Stivers, 12 USCMA 315, 317, 30 CMR 315, the Court said:
“The Manual for Courts-Martial, United States, 1951, expressly recognizes the vast difference between the proceedings regarding the merits of the case and those relating to sentence. Thus, with respect to the latter, it provides for relaxation of the rules of evidence and permits affidavits, certificates, and other writings of apparent reliability to be received on behalf of the accused. Manual, supra, paragraph 75c (1). It unequivocally declares that the purpose of these proceedings is to enable the prosecution and the defense to present ‘appropriate matter to aid the court in determining the kind and amount of punishment to be imposed.’ Manual, supra, paragraph 75a. Recognizing this purpose and apparently in order to en-[339]*339óoürágé áii accused to present such information, personally or otherwise, it also provides that:
‘Matter which is presented to the court after findings of guilty have been announced may not be considered as evidence against the accused in determining the legal sufficiency of such findings of guilty upon revieiu.’ (Manual, supra, paragraph 75a.) (Emphasis supplied.)” [See also United States v Blau, 5 USCMA 232, 17 CMR 232; United States v Plante, 13 USCMA 266, 32 CMR 266.]
Prosecution’s introduction of Caiola’s pretrial declarations must, therefore, be considered in the light of these distinctions.
Tempia, however, settled that an accused member of the armed forces is afforded protection under the Fifth Amendment to the Constitution. Moreover, the Court has reinforced that decision with a series of similar holdings. Cf. United States v Hardy, 17 USCMA 100, 37 CMR 364; United States v McCauley, 17 USCMA 81, 37 CMR 345; United States v Pearson, 17 USCMA 204, 37 CMR 468; United States v Wolf, 17 USCMA 253, 38 CMR 51; United States v Bollons, 17 USCMA 253, 38 CMR 51; United States v Solomon, 17 USCMA 262, 38 CMR 60. These cases have afforded protection to the accused whether the objective of the statements used was to show guilt or to attack credibility in regard to the merits. Cf. United States v Lincoln, 17 USCMA 330, 38 CMR 128.
The application of both statutory and constitutional restrictions is subject to interpretation. With regard to Article 31, this Court has said, for example, that if an accused “volunteers” incriminating information to authorities, he does so at his own peril. United States v O’Brien, 3 USCMA 325, 12 CMR 81; United States v Hinkson, 17 USCMA 126, 37 CMR 390. Moreover, civilian investigators are not bound by Article 31 requirements when acting independently of the military. United States v Penn, 18 USCMA 194, 39 CMR 194; United States v D’Arco, 16 USCMA 213, 36 CMR 369. Examining physicians are'not within Article 31 requirements under some circumstances. United States v Malumphy, 12 USCMA 639, 31 CMR 225; United States v Baker, 11 USCMA 313, 29 CMR 129; United States v Babbidge, 18 USCMA 327, 40 CMR 39. Similarly, need of such a warning may depend upon the “officiality” which surrounds both the inquiry and the inquirer. United States v Cross, 17 USCMA 660, 34 CMR 440; United States v Ballard, 17 USCMA 96, 37 CMR 360.
The Supreme Court in Gilbert v California, 388 US 263, 18 L Ed 2d 1178, 87 S Ct 1951 (1967), placed handwriting exemplars outside the protection afforded by the Fifth and Sixth Amendments. The zone of a person’s privacy is also opened to continual evaluation. Cf. Schmerber v California, 384 US 757, 16 L Ed 2d 908, 86 S Ct 1826 (1966), and the accompanying annotation in 16 L Ed 2d 1332. A “search” within the meaning of the Fourth Amendment is also an undefined and unsettled issue. Cf. Terry v Ohio, 392 US 1, 20 L Ed 2d 889, 88 S Ct 1868 (1968).
The question remains whether the privilege against self-incrimination demands exclusion of a pretrial statement, not used on the merits in any way, from being used during the sentencing proceedings to offset affirmative evidence intended to mitigate punishment of the accused.
Walder v United States, 347 US 62, 98 L Ed 503, 74 S Ct 354 (1954), is authority that illegally obtained evidence relevant to guilt or innocence of an accused may nevertheless be used at trial if restricted to the impeachment of accused’s credibility regarding matter he had affirmatively introduced that goes beyond denial of the commission of the offense. Since Miranda, the efficacy of Walder in the usual trial proceeding has been placed in doubt. Cf. Groshart v United States, 392 F2d 172 (CA 9th Cir) (1968). Because on this occasion we are concerned with post-finding proceedings, however, I am constrained to hold that under the circumstances of this case, Walder has [340]*340sufficient vitality to permit the use of Caiola’s statement. Consequently, on this basis, the law officer correctly permitted the use of Caiola’s statement to be used in the post-finding proceeding for purposes of impeachment. Cf. Serrano v State, — Nev —, 447 P2d 497 (1968); People v Harris, — App Div 2d —, 298 NYS2d 245 (1969).
The decision of the board of review is affirmed.