TESTIMONIAL AND NONTESTIMONIAL COMPULSION

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 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.

More often the Court relied on a supposed distinction between forcing a person to furnish evidence against himself of a testimonial nature and forcing him to be the source of nontestimonial or physical evidence against himself, usually derived from his body. The word "witness" implies giving testimony based on one's knowledge, not displaying one's person. Compulsion to reveal information other than one's physical characteristics is generally unconstitutional, especially if the information is derived directly from the party himself, though not if the police lawfully find his records. The Court's distinction between testimonial and nontestimonial compulsion is obviously a bit porous. That distinction derived from the realistic need to prevent the Fifth Amendment from disabling police identifications based on fingerprints, handwriting, photographs, blood samples, voice exemplars, and lineups. The distinction had its origin in a passing remark by Justice oliver wendell holmes in 1910, when he dismissed as "an extravagant extension of the Fifth Amendment" the claim that requiring a defendant to model a shirt for identification purposes breached the right against self-incrimination.

The trouble with the distinction, apart from the Court's own inconsistency, is that physical or identifying evidence can be communicative in character, as when a laboratory report, the result of a drunken driver's blood sample, is introduced against him, or when a grand jury indicts one whose voice identifies him as the culprit. Whether by writing, speaking, or giving blood involuntarily, an individual has been compelled to furnish evidence against himself. That he has not been forced to "testify" is a distinction less persuasive than semantically catchy. However, some such distinction seems necessary. The fundamental meaning of the Fifth Amendment is that a person need not be the unwilling instrument of his own undoing and that the state must find its own evidence against him without his involuntary cooperation, and a literal reading of the amendment would prevent the police from fingerprinting a suspect or making him stand in a lineup for identification purposes. Thus the Court must find ways around the amendment.

A minority of Justices have sought a compromise by permitting as nontestimonial that evidence which does not require volition or affirmative cooperation; thus, the lineup and taking blood, photographs, and fingerprints require merely passive conduct. If, however, incriminating evidence can be secured only by the active volition of one asked to repeat certain words, model clothing, or give a handwriting sample, these minority Justices would sustain a Fifth Amendment plea. But their distinction between volitional and passive acts is as hairsplitting as the majority's between testimonial and nontestimonial compulsion. Anyone overpowered to give a sample of his blood would scarcely think he affirmatively cooperated.

The Justices in the majority also make unreal distinctions, as between the physical properties of one's voice and the testimonial content of what he says: "This is a stickup" communicates more than pitch and resonance. If the right against self-incrimination protects a defendant at his trial from having to speak up for the benefit of witnesses, why does it not protect him in the grand jury room, the interrogation room, or the lineup?

The distinction between testimonial and nontestimonial compulsion derives from the needs of law enforcement and seems to be a permanent addition to constitutional law. The Court, which can reach whatever results it desires, probably will add to the roster of nontestimonial evidence that can be compelled and will narrow the meaning of testimonial compulsion or find exceptions to it.

Leonard W. Levy
(1986)

Bibliography

Bauer, W.J. 1977 Formalism, Legal Realism, & Constitutionally Protected Privacy under the Fourth & Fifth Amendments. Harvard Law Review 90:945–991.

Koontz, Hal and Stodel, Jeffrey 1973 The Scope of Testimonial Immunity under the Fifth: Kastigar v. United States. Loyola (Los Angeles) Law Review 6:350–383.