Testimonial and Nontestimonial Compulsion

Author:Leonard W. Levy

Page 2677

In the 1960s the Supreme Court ruled that the RIGHT AGAINST SELF-INCRIMINATION was not infringed when police compelled the driver of an accident vehicle to give a blood sample for analysis of its alcoholic content, compelled a suspect in a LINEUP to utter before witnesses the words used by a bank robber, and compelled another suspected bank robber to submit a sample of his handwriting for comparison with a note given to a bankteller. In the 1970s the Court held that the right against self-incrimination did not protect a person from the compulsory production of business and tax records in the possession of his or her accountant or lawyer, and did not protect a person from a court order to make a voice recording for a federal GRAND JURY seeking to identify a criminal by the sound of a voice on a legally intercepted telephone conversation. All these decisions shared a thorny problem: if a person is compelled

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to provide the state with evidence to incriminate him, is he necessarily a witness against himself in the Fifth Amendment sense?

The Court prefers a different formulation: does nontestimonial compulsion force a person to be a witness against himself criminally? The consistent answer has been "no," even if there was a testimonial dimension to the forced admissions. If that testimonial dimension loomed too large, the Court loosened its distinction between testimonial and nontestimonial compulsion and relied on some other distinction. Thus, when the driver of a vehicle involved in an accident was required by state law to stop and identify himself, though doing so subjected him to criminal penalties, the Court saw no Fifth Amendment issue, only a regulation promoting the satisfaction of civil liabilities. Similarly, when a lawyer or accountant was forced to turn over a client's incriminating records, the client had not been compelled at all, though he paid the criminal penalty and lost the chance to make a Fifth Amendment plea. And when the police during the course of a lawful search found incriminating business records, the records were introduced in evidence, although they could not have been subpoenaed directly from the businessman. In these cases, where the compulsion was communicative or testimonial in character, the Court inconsistently discoursed on the need to decide as it did in order to avoid a decision against the introduction of nontestimonial evidence that had been compelled.

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