"Similarly, compelling Wade to speak within hearing distance of the
witnesses, even to utter words purportedly uttered by the robber,
was not compulsion to utter statements of a 'testimonial' nature; he
was required to use his voice as an identifying physical
characteristic, not to speak his guilt... (the privilege) offers no
protection
against
compulsion
to
submit
to
fingerprinting,
photography, 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...
None of these activities becomes
testimonial within the scope of the privilege because required of
the accused in a pretrial line-up."
3. Handwriting. In Gilbert v. California, 388 US 263, L.Ed.2d 1178 7SCt 1951
(1967), an accused was arrested for a series of robberies in which the robber
used a handwritten note demanding money. The Supreme Court Ruled:
"The taking of the exemplars (handwriting samples) did not violate
petitioner's Fifth Amendment privilege against self-incrimination.
The
privilege
reaches
only
compulsion
of
an
accused's
communications... and the compulsion of responses which are also
communications... and not compulsion which makes a suspect or
accused the source of real or physical evidence... One's voice and
handwriting are, of course, means of communication. It by no means
follows, however, that every compulsion of an accused to use his
voice or write compels a communication within the coverage of the
privilege. A mere handwriting exemplar, in contrast to the content
of what is written, like the voice or body itself, is an identifying
physical characteristic outside its protection."
In U.S. v. Lloyd, 10 MJ 172 (CMA, 1981), the accused was suspected of having
committed ration control violations by having purchased more goods than he was
authorized to buy. As part of the investigation, an MPI investigator had the
suspect produce his identification card, so that the signature could be
compared with that used in connection with the various purchases of controlled
merchandise.
The court held that "handwriting and voice exemplars are not
protected by the privilege against self-incrimination."
The identification
card, of course, was being obtained "for use as a handwriting exemplar."
Consequently, "there is no reason to require an Article 31 warning before
requesting a suspect to give a handwriting sample or, as here, to produce a
document containing his signature or handwriting to be used for comparison
purposes."
The same result followed in U.S. v. Holliday, 24 MJ 686 (ACMR,
1987), in which the court held that "the compelled productions of a handwriting
exemplar, even in an incriminating style uncharacteristic of the accused, does
not violate the Fifth Amendment."
4. Body fluids. Schmerber v. California, 38US757, 16 L.Ed.2d 908, 86SCt 1826
(1966), involved a suspect who was under arrest for driving under the influence
of intoxicating liquor. While at the hospital for treatment of injuries which
he had sustained, a blood sample was withdrawn by a physician. The court ruled
that the Fifth Amendment privilege "reaches an accused's communications." It
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." Under the facts of this case, then,
MP1020
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