Physical Evidence and Displaying Physical Characteristics

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VII. Physical evidence and displaying physical characteristics

The Fifth Amendment protects only against compulsion to give testimony against oneself. Thus, the privilege does not apply when a defendant is compelled (a) to turn over physical evidence; (b) to perform affirmative acts before the jury; or (c) to submit to blood tests. In Schmerber, 384 U.S. 757, the Supreme Court held:

It is clear that the protection of the privilege reaches an accused's communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers. 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.

Id. at 763-64 (internal citations omitted).

In Holt v. United States, 218 U.S. 245 (1910), the Supreme Court stated:

[T]he prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition [on extorting] communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof.

Id. at 252-53. In Shanks v. State, 185 Md. 437, 444 (1945), the Court of Appeals held that a doctor's testimony, to the effect that the blood found on the defendant's coat did not match the blood of the person the defendant claimed it came from, did not violate the defendant's Fifth Amendment privilege against compelled self-incrimination. See Allen v. State, 183 Md. 603, 607 (1944).

A. Compelling the defendant to wear certain items

In Holt, 218 U.S. at 252-53, the Supreme Court held that testimony that a blouse fit the defendant did not violate the Fifth Amendment privilege. In Allen, 183 Md. at 613, the Court of Appeals held that it violated the defendant's Fifth Amendment privilege against compelled self-incrimination to require him to wear, for the jury to observe, a hat found at the crime scene.

In Morgan v. State, 79 Md. App. 699 (1989), the Court of Special Appeals held that the defendant's privilege against compelled self-incrimination was not violated when he was forced to wear, for the jury to observe, a coat linked to the crime, noting that Allen was likely no longer the law. The Court stated: "[T]he trial court order requiring the Defendant to don a coat which admittedly contained incriminatory evidence, to determine whether it fit him, did not constitute a compulsion to elicit communicative or testimonial evidence from the Defendant." Id. at 707.

B. Police order mandating an affirmative act

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