§ 43.03 "TESTIMONIAL-REAL" EVIDENCE DISTINCTION

• Jurisdiction: United States

§ 43.03. "TESTIMONIAL-REAL" EVIDENCE DISTINCTION

The Supreme Court has held that the application of the privilege turns on the distinction between testimonial or communicative evidence and real or physical evidence. Schmerber v. California⁸ is the leading case on this issue. Schmerber was arrested for driving under the influence of alcohol after being treated at a hospital for injuries sustained in an automobile collision. At the direction of the investigating police officer, a physician obtained a blood sample from Schmerber. Schmerber argued that the extraction of blood violated the privilege against self-incrimination. Rejecting this argument, the Court wrote:

It is clear that the protection of the privilege reaches an accused's communications, whatever form they might take. . . . On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling "communications" or "testimony," but that compulsion which makes a suspect or accused the source of "real or physical evidence" does not violate it.⁹

In United States v. Wade,¹⁰ a line-up case, the Court held that compelling an accused to exhibit his person for observation was compulsion "to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have" and thus was not proscribed by the privilege.¹¹ In Gilbert v. California,¹² the Court concluded that the compelled production of a "mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside [the Fifth Amendment's] protection."¹³Similarly, in United States v. Dionisio,¹⁴ the Court ruled that compelling a defendant to speak for the purpose of voice analysis did not violate the Fifth Amendment because the "voice recordings were to be used solely to measure the physical properties of the witnesses' voices, not for the testimonial or communicative content of what was to be said."¹⁵

The Court also applied this distinction in Pennsylvania v. Muniz,¹⁶ holding that evidence of an arrestee's slurred speech and lack of muscular coordination during sobriety tests involved nontestimonial physical evidence. Police asked Muniz to perform a horizontal gaze nystagmus test, a "walk and turn" test, and a "one leg stand test." A videotape of his performance was shown at trial. The Court...