Self-incrimination - what can an accused person be compelled to do?

• Author: Inbau, Fred E.
• Position: Originally published in Journal of the American Institute of Criminal Law and Criminology, vol. 28, p. 261, 1937 - Reprint

In the course of criminal investigations and criminal prosecutions it frequently becomes important, or at least desirable, to require an accused person to perform some act or to submit to what might be termed an invasion of his bodily security. The usual situation arises from attempts to effect an identification of the accused, or to ascertain from an examination of his body certain facts tending to establish his guilt or innocence as a criminal offender. In such instances, to what extent does the constitutional privilege against self-incrimination afford protection to accused persons?

A discussion concerning the scope and limitations of the privilege against self-incrimination necessarily involves a consideration of its history and of the policy which justifies its existence. Of this, however, only a brief treatment is necessary for our present purpose. The principal objective of this paper is to present a review of pertinent legal decisions, analyzed and discussed under various classifications based upon factual situations. These classifications, however, are offered merely for the convenience and interest of the reader and not as any indication that each group of cases warrants the application of a different legal principle in interpreting the constitutional privilege.

1. HISTORY AND POLICY OF THE PRIVILEGE

   The early English history of our present day privilege against self-incrimination is indeed a strange one. It developed about the middle of the seventeenth century as a restriction upon the cruel religious persecutions for heresy in the ecclesiastical courts, and primarily for the purpose of stripping such courts of their increasing authority, so that they might be kept within their proper status--beneath the dignity and authority of the common law courts.(1) Unlimited inquisitorial powers, permitting the administration of the oath "ex officio" and the compulsory examination of persons accused of heresy and of other offenses within the jurisdiction of the church courts, seemed to endanger the superior authority of the courts of common law.(2) In addition to this, of course, there existed a general disapproval of the practice, not so much because an accused was forced to testify against himself concerning the particular charge against him, but principally for the reason that such a practice permitted a general inquiry into a person's behavior and conduct, however unrelated they may be to the charge in question.

   Not long after the abolition from the ecclesiastical courts of the oath "ex officio" and its attendant compulsory examinations, attention was focused upon the justification for even the common law courts to exercise such widespread authority. The result was a general reaction to the effect that no person should be bound to incriminate himself on any charge in any court. Common law courts began to concede this claim, first in criminal trials and later in civil proceedings. It soon became settled into the bed rock of English common law. By the latter part of the seventeenth century the privilege was so well established that apparently Parliament considered it unnecessary to include it in the Bill of Rights.(3)

   On first impression it seems rather queer that this movement, started originally against a method of procedure in ecclesiastical courts, should produce in its ultimate effect a similar rule against testimony in common law courts. In explaining this phenomenon Wigmore calls attention to the comments of Bentham to the effect that this was only a nature and inevitable development, suggested, of course, by the procedural change in the ecclesiastical courts, to safeguard against existing and potential common law abuses, which, after all, were not substantially different from those resulting from the exercise of arbitrary power in probing into a man's conscience on the subject of religion.

   It should be understood that the privilege against self-incrimination and the rule excluding untrustworthy confessions are separate and distinct, as to origin, development, and principle. Frequently the two are confused and treated as identical. However, the history of each differs in origin by one hundred years, and obviously, as pointed out by Wigmore,(4) if the privilege, "fully established in 1680, had sufficed fur both classes of cases, there would have been no need in 1780 for creating the distinct rule about confessions." Moreover, the privilege was designed to cover only statements made in court under process as a witness, whereas the confession rule was intended to cover statements both in court and out. And finally, in regard to practical effects, the differences become quite apparent. It seems, therefore, that the sole relationship between the confession rule and the privilege is to be found in the general spirit and caution which the law gradually developed in the interest of accused persons.

   The settlement of the American colonies took place about the time in English history when opposition to the "ex officio" oath of the ecclesiastical courts was most pronounced, and when the insistence upon the privilege against self-incrimination in the common law courts had begun to have its effect. Apparently the very reasons which contributed to the change in the English common law concept of the rights of accused persons largely accounted for the recognition of the privilege in the colonies, and for its incorporation in the federal constitution and in the constitutions of the several states.(5)

   Although some of the details concerning the English and early American history of the privilege are obscure, it is perfectly clear that the primary purpose of the privilege was to put an end to the practice of employing legal process to extract from a person's lips an admission of his guilt.(6) And this interpretation must persist even under the view that the privilege is closely related to the confession rule both as to history and principle--which view is not altogether unreasonable as regards the adoption of the privilege in our federal and state constitutions.(7)

   In examining the following collection of cases it is well to keep in mind not only the original purpose of the privilege but also the policy which justifies its existence at the present time:

   "It exists mainly in order to stimulate the prosecution to a full and fair search for evidence procurable by their own exertions, and to deter them from a lazy and pernicious reliance upon the accused's confessions."(8) Were it not for this consideration it might well be contended that the privilege has outlived its usefulness.(9) Then again, however, we should not lose sight of the fact that "the exercise of the power to extract answers begets a forgetfulness of the just limitations of that power."(10) It may also become an additional incentive for law enforcement officers "to sit comfortably in the shade rubbing red pepper into a poor devil's eyes rather than go about in the sun hunting up evidence."(11)

2. FOOTPRINTS

   In discussing the admissibility of compulsory evidence regarding footprint comparisons it is necessary to distinguish between the type of case where a person's shoes are forcibly taken from him for the purpose of comparing them with tracks at the scene of a crime and the case where he is himself compelled to place his shoes or feet into the prints so that a comparison may be effected. Each situation involves the application of a different legal principle.

   Under the established role that anything of evidential value on or about the person arrested is a proper object of confiscation(12) the courts should have experienced little or no difficulty in upholding the admissibility of evidence obtained as the result of a comparison made with a shoe or shoes obtained from an accused person against his will. Nevertheless, many of the opinions rendered in cases involving the issue have been based upon a consideration of the constitutional privilege against self-incrimination. Practically all the cases held in favor of admissibility--that is, that there was no violation of the privilege against self-incrimination(13)--but the fact remains that the same result could have been reached by invoking the simple rule just mentioned.(14)

   As regards the admissibility of evidence concerning footprint comparisons where the accused himself has been compelled to place his :foot or slate into a print--the type of case where the real issue is one of possible self-incrimination--the weight of authority supports the proposition that such compulsory behavior or conduct does not violate the constitutional privilege, for the reason that the accused in such instances is "not testifying as a witness" nor is he "delivering any testimonial utterance."(15) The decisions in support of the minority view hold that such "enforced conduct" constitutes "testimonial compulsion."(16)

   The unreasonableness of the minority view is very well exemplified by a decision rendered several years ago in a case which involved the admissibility of evidence as to footprints made (1) by compelling the accused to place his foot with shoe on, into a print at the scene of a crime, and (2) by a sheriff placing the accused's shoes into the prints subsequent to their forcible removal from the feet of the accused.(17) After a very thorough and exhaustive discussion of the problem presented by the second method, the court expressed its approval of the evidence resulting therefrom. It then devoted relatively little space in its opinion to the other and more important issue presented by the first method mentioned above, and abruptly concluded by holding that "this evidence falls on the wrong side of the line of cleavage" and therefore its admissibility constituted reversible error.

3. EXAMINATION OF BODY FOR SCARS, MARKS, AND WOUNDS

   The leading decision concerning the right to examine the body of an accused person for scars and other identifying features is one rendered by the Supreme Court of Nevada in 1879...