7.1.2 Application of the Doctrine

• Library: Criminal Procedure in Practice (ABA) (2018 Ed.)

7.1.2 Application of the Doctrine

In a trio of famous cases,⁸ the Supreme Court applied this limited "testimonial" analysis of self-incrimination to lineup identifications. In one case, the defendant was ordered to stand in a lineup with strips of tape across his face and recite something to the effect of "put the money in the bag."⁹ This evidence of that identification was held not to be self-incrimination:

[C]ompelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance. . . . Similarly, compelling Wade to speak within hearing distance of the witness, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a "testimonial" nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt.¹⁰

The Court then held that the forced taking of handwriting or voice exemplars does not violate the privilege.¹¹ Subtle—and difficult— issues with such exemplars can surface, however. While the writing in the sample, for instance, does not raise constitutional questions, the actual content in a handwriting exemplar may. Some courts have decided that spelling "is the result of the operation of a person's mind, the expression of which generally falls within the Fifth Amendment's protection."¹²

Generally, courts have narrowly construed the privilege against self-incrimination in the identification setting. They routinely uphold displays involving physical examinations,¹³ fingerprinting,¹⁴ x-rays,¹⁵ and orders that the defendant remove glasses¹⁶ or put on clothes,¹⁷ a mask,¹⁸ or a wig.¹⁹

CAUTION

While it would be futile to attempt to avoid compliance with an order for a client to provide handwriting exemplars, fingerprints, or a blood...