Silence and Nontestimonial Evidence

SILENCE AND NONTESTIMONIAL EVIDENCE

Caleb Lin*

ABSTRACT

The Fifth Amendment’s Self-Incrimination Clause prohibits the government from

compelling any person to be a “witness” against herself. Historically, the scope of

that prohibition encompassed the compelled production of any evidence—including

documents—from suspects. The Supreme Court, however, has winnowed the prohibi-

tion to oral communications only. This Article argues that the current doctrine is

neither logically nor historically credible and calls for the reinstatement of silence

as a core right in criminal procedure.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388

I. HISTORY & DEVELOPMENT OF THE ACT-OF-PRODUCTION DOCTRINE . . . . . 390

A. Boyd v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391

B. Fisher v. United States and United States v. Hubbell . . . . . . . . 395

II. COMPELLED PRODUCTION BEFORE THE FIFTH AMENDMENT . . . . . . . . . . . 400

A. Background Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401

B. Early Caselaw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402

C. Early State Constitutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 404

III. REASSESSING COMPELLED PRODUCTION UNDER THE FIFTH AMENDMENT . . 409

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412

In the corrupted currents of this world

Offence’s gilded hand may shove by justice,

And oft ’tis seen the wicked prize itself

Buys out the law: but ’tis not so above;

There is no shuffling, there the action lies

In his true nature; and we ourselves compell’d

Even to the teeth and forehead of our faults,

To give in evidence.

–Claudius, King of Denmark

1

* J.D. 2015, New York University School of Law; member, New York, Colorado, and California bars. The

Author practices indigent criminal defense in California. He is grateful to Tiffany Lin, J.D. 2016, New York

University School of Law; and the Honorable Ronald L. Gilman of the U.S. Court of Appeals for the Sixth

Circuit for their thoughts and comments. © 2021, Caleb Lin.

1. WILLIAM SHAKESPEARE, HAMLET act 3, sc. 3, l. 57–64.

387

INTRODUCTION

No person, the Fifth Amendment promises, “shall be compelled in any criminal case

to be a witness against himself.”

2

What it means “to be a witness” against oneself has

been largely settled in American law since at least 1910, when Justice Oliver Wendell

Holmes wrote in United States v. Holt that “the prohibition of compelling a man in a

criminal court to be witness against himself is a prohibition of the use of physical or

moral compulsion to extort communications from him. . . .”

3

From Holt, the general

principle has been derived that the compulsion of physical, noncommunicative evi-

dence from a defendant—such as a demonstration of the fitting of an article of cloth-

ing,

4

a handwriting exemplar,

5

a blood sample,

6

or even documents

7

—does not trigger

the protections of the Self-Incrimination Clause because compelling a defendant to pro-

duce such evidence does not compel the defendant to be a “witness.”

This principle, however, is neither historically nor logically sound. In fact, when

Justice Thurgood Marshall complained in 1973 that he could not “accept the notion

that the Government can compel a man to cooperate affirmatively in securing

incriminating evidence when that evidence could not be obtained without the coop-

eration of the suspect,”

8

he was simply reiterating a position with a historical pedi-

gree stretching back to the Framers’ earliest discussion of the language of the Fifth

Amendment

9

and to even older caselaw from England concerning the production

of documents.

10

The Self-Incrimination Clause bars the admission of compelled

evidence, testimonial or otherwise. At the time the Fifth Amendment was ratified,

there was no semantic difference between “being a witness” and “giving evi-

dence,”

11

and no such difference existed before that time either.

2. U.S. CONST. amend. V, cl. 3.

3. Holt v. United States, 218 U.S. 245, 252–53 (1910) (emphasis added). In that case, a question arose at trial

“as to whether a blouse belonged to” the defendant, and a “witness testified that the prisoner put it on and it fitted

him.” Id. at 252. The defendant claimed that he had been forced to put the blouse on, and that the fact that the

blouse fit him should be suppressed. Id.

4. Id. (describing the defendant’s Fifth Amendment argument as an “extravagant extension”).

5. E.g., United States v. Euge, 444 U.S. 707, 716–18 (1960).

6. Schmerber v. California, 384 U.S. 757, 765 (1966).

7. Fisher v. United States, 425 U.S. 391, 414 (1976).

8. United States v. Mara, 410 U.S. 19, 33 (1973) (Marshall, J., dissenting).

9. James Madison’s language was discussed only in terms of prohibiting the compulsion of only “evidence

against himself” in the Committee of the Whole. See LEONARD W. LEVY, ORIGINS OF THE FIFTH AMENDMENT:

THE RIGHT AGAINST SELF-INCRIMINATION 424 (1968) (quoting 1 ANNALS OF CONG. 753 (1789) (Gales & Seaton

ed. 1834)); infra Section II.C.

10. See, e.g., R v. Purnell (1748) 96 Eng. Rep. 20 (KB) [45] (denying a motion that would require document

production because “[g]ranting such a rule would be to make a man produce evidence against himself, in a

criminal prosecution”).

11. See Richard A. Nagareda, Compulsion “To Be a Witness” and the Resurrection of Boyd, 47 N.Y.U. L.

REV. 1575, 1608–09 (1999) (discussing language sources contemporaneous with the adoption of the Constitution

that strongly suggest that being a “witness” and “giving evidence” were fundamentally indistinguishable). The

Author owes a debt of gratitude to the late Professor Nagareda for his work in Compulsion, but this Article

departs from his work in its proposal to expand Fifth Amendment protections to all forms of physical evidence

and in its analysis of additional historical sources.

388 AMERICAN CRIMINAL LAW REVIEW [Vol. 58:387