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Report No. 87

III. U.S.A.-Non-testimonial compulsion permitted

In a number of comparatively recent decisions, the Supreme Court of U.S.A. has indicated that not all evidence which an accused is compelled to supply is protected by the fifth amendment.1-2 Thus, in Schmerber v. California, (1966) 384 US 757 (764). See also Gilbert v. California, (1967) 388 US 263; United States v. Wade, (1967) 388 US 218, the Supreme Court stated:

"The distinction which has emerged 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 the privilege."

Employing this distinction, courts have upheld the following acts-(i) compelling an accused to participate in a line-up3 (ii) to provide handwriting samples4 voice exemplars5, (iii) to provide blood samples,6 and fingerprints,7 (iv) to dress in clothing related to the crime,8 and (v) to identify himself as being present at the scene of an accident9-11. The Supreme Court has explained that such procedures do not violate the privilege, because they compel the accused only to "exhibit his physical characteristics, not to disclose any knowledge he might have"12.

In the latest case13 relating to voice-prints, the view was reaffirmed that a handwriting exemplar (in contrast to the content of the work written) is, like the voice or body itself, an identifying physical characteristic outside the protection of the fifth amendment. It was emphasised that the voice recordings were to be used solely to measure the physical properties of the voice of the persons concerned, and not for the testimonial or communicative content of what has been said.

1. Aronson Payschistric Examination, (1973-74) 26 Stanford Law Review 55 (67, 68).

2. See 16 L Ed 2d 1332.

3. See United States v. Wade, (1967) 377 US 218 (also permitting requirement that defendant speak for purpose of voice identification); United States v. Butto, 393 P 2d 783 (4h Cir. 1968).

4. Gilbert v. California, (1967) 388 US 263 (265-267); United States v. Doe, 405 F 2d 436 (2d Cir. 1968).

5. See United States v. Dionisio, (1973) 410 US 1.

6. See Schmerber v. California, (1966) 374 US 757.

7. See United States ex. rel. 0 Halloran v. Rundle, 266 F Supp 173 (E.D. Pa.) af'd , 384 F. 2d 997 (3rd Cir. 1967), cert. denied, (1968) 393 US 860.

8. See United States v. Evans, 359 F 2d (3d Cir.) cert. denied, (1966) 385 US 863; Morrie v. State, (184) 50 2d 199 (Ha App 1966).

9. See California v. Byars, (1971) 402 US 424.

10. Case Law of Federal Courts taken mainly from Aaronson, Psychiatrio Examination (1973-74) 26 Stanford Law Review 55 (67, 68).

11. See further 21 American Jurisprudence, 2d., Articles 314-316 (Criminal Law).

12. United States v. Wade, (1967) 388 US 218 (222).

13. United States v. Dioniso, (1973) 410 US 1 (6).



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