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Report No. 87

IV. Due process

Violation of due process, however, is not allowed where the police practice "shocks the conscience",-as where a stomach-pump is used to extract a substance from within the accused body. Such evidence is not admissible.1

The same test was applied to the extraction of a blood sample taken from an unconscious perpetrator though the test resulted in admissibility.2

An American writer, after mentioning the effect of a violation of constitutional guarantees (the exclusionary rule), adds3-

"Included in this rule (due process) are-identification during a line-up without the presence of the legal counsel, confessions (taken) during the time of detention by the police if the prisoner had no opportunity to have legal counsel present."

Within the due process limitation, scientific evidence may unquestionably be produced from a defendant as long as the methods are relatively gentle and scientifically proper.4 The demands of an urgent traffic law enforcement have contributed much to the admissibility of alcohol test results5 and, for that matter, of radar speed evidence6. A suspect might be forced to wear particular clothing, where this was a material evidence in the identification7.

1. Rochin v. California, (1952) 342 US 165. A subsequent illinois decision seems hardly reconcilable with the Supreme Court decision, State v. Odom, 353 SW 2d 708 (Mc 1952).

2. Breithaupt v. Abraham, (1957) 352 US 432. Delaware reached an opposite conclusion in State v. Wolf, 164 A 2d 865 (Del 1960).

3. Peter Hay Introduction to U.S. Law, (1976), p. 193.

4. See People v. Diicher, 189 Cal App 2d 720: Cal Eptr. 407 (1961); Cf. Qotte v. State, 172 Neb 110: 108 NW 2d 737 (1961).

5. E.g. State v. Baker, 56 Wash 2d 846: 355 P 2d 806 (1960); and see State v. Ball, 179A 2d 466 (Vt., 1962); Bean v. State, 12 Utah 2d 76: 362 P 2d 750 (1962).

6. Fiser Vehicle. Traffic Law, (1961), pp. 240-243.

7. Holt v. United States, (1910) 218 US 245 (252) (Holmes, J.).

(1932) 55 Federal 2d 67: 83 ALR 122.

Identification of Prisoners Act, 1920 Back

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