holding that the taking of handwriting exemplars is a form of compulsion within the meaning of the Fifth Amendment, but that, “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” because it is not the kind of “communication” covered by the privilege
How later courts described this case
- holding that the taking of handwriting exemplars is a form of compulsion within the meaning of the Fifth Amendment, but that, “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” because it is not the kind of “communication” covered by the privilege
- holding that the defendant’s “Tangela” tattoo was testimonial because -it tended to prove that the defendant had a relationship with a person named Tangela Hudson
- recognizing that providing 27 a handwriting sample is not a testimonial act protected under the Fifth Amendment
- holding that identification testimony given at a pretrial line-up without counsel is per se inadmissible and that the state is not entitled to an opportunity to show that the testimony had an independent source
Written by the judges who cited it.
Later courts went against this
Reported overruled by Neil v. Biggers, 409 U.S. 188 (1972) — not on the Supreme Court's list
We there also noted our view that the per se exclusionary rule of Gilbert v. California, 388 U. S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178, had implicitly been overruled by Neil v. Biggers, 409 U. S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401.
Questioned by In re Grand Jury Proceeding Related to Doe, 317 F. App'x 54 (2009)
Doe calls into question the scope of the Fifth Amendment protection announced in Gilbert.
Distinguished
Distinguished by United States v. Sumpter, 133 F.R.D. 580 (1990)
Relying on the unpublished opinion of the district court, the Court of Appeals rejected the defendant’s argument that Mara, Dionisio, and Gilbert were inapplicable to her case because she had been required to give a handwriting exemplar “in a backward slant, unlike her natural handwriting.
Distinguished by Thacker v. South Carolina, 438 F. Supp. 447 (1977)
388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) is inapplicable.
Distinguished by Commonwealth v. Hervey, 1 Mass. App. Ct. 727 (1974)
388 U. S. 263 (1967), is inapplicable because (1) the confrontation was found to be accidental and (2) the confrontation occurred well before “the onset of formal prosecutorial proceedings.”
Distinguished by State v. Sadler, 95 Idaho 524 (1973)
The prosecution did not put on evidence of the police station identification, and therefore the per se exclusionary rule articulated in Wade and Gilbert is inapplicable.
The opinion
Mr. Justice Fortas, with
whom The Chief Justice joins, concurring in part and dissenting in part.
I concur in the result — the vacation of the judgment of the California Supreme Court and the remand of the case — but I do not believe that it is adequate. I would reverse and remand for a new trial on the additional ground that petitioner was entitled by the Sixth and *291 Fourteenth Amendments to be advised that he had a right to counsel before and in connection with his response to the prosecutor’s demand for a handwriting exemplar.
1. The giving of a handwriting exemplar is a “critical stage” of the proceeding, as my Brother Black states. It is a “critical stage” as much as is a lineup. See United States v. Wade, ante, p. 218. Depending upon circumstances, both may be inoffensive to the Constitution, totally fair to the accused, and entirely reliable for the administration of justice. On the other hand, each may be constitutionally offensive, totally unfair to the accused, and prejudicial to the ascertainment of truth. An accused whose handwriting exemplar is sought needs counsel: Is he to write “Your money or your life?” Is he to emulate the holdup note by using red ink, brown paper, large letters, etc. ? Is the demanded handwriting exemplar, in effect, an inculpation — a confession? Cf. the eloquent arguments as to the need for counsel, in the Court’s opinion in United States v. Wade, supra.
2. The Court today appears to hold that an accused may be compelled to give a handwriting exemplar. Cf. Schmerber v. California, 384 U. S. 757 (1966). Presumably, he may be punished if he adamantly refuses. Unlike blood, handwriting cannot be extracted by a doctor from an accused’s veins while the accused is subjected to physical restraint, which Schmerber permits. So presumably, on the basis of the Court’s decision, trial courts may hold an accused in contempt and keep him in jail— indefinitely — until he gives a handwriting exemplar.
This decision goes beyond Schmerber . Here the accused, in the absence of any warning that he has a right to counsel, is compelled to cooperate, not merely to submit; to engage in a volitional act, not merely to suffer the inevitable consequences of arrest and state custody; to take affirmative action which may not merely identify *292 him, but tie him directly to the crime. I dissented in Schmerber . For reasons stated in my separate opinion in United States v. Wade, supra, I regard the extension of Schmerber as impermissible.
In Wade, the accused, who is compelled to utter the words used by the criminal in the heat of his act, has at least the comfort of counsel — even if the Court denies that the accused may refuse to speak the words — because the compelled utterance occurs in the course of a lineup. In the present case, the Court deprives him of even this source of comfprt and whatever protection counsel’s ingenuity could provide in face of the Court’s opinion. This is utterly insupportable, in my respectful opinion. This is not like fingerprinting, measuring, photographing — or even blood-taking. It is a process involving the use of discretion. It is capable of abuse. It is in the stream of inculpation. Cross-examination can play only a limited role in offsetting false inference or misleading coincidence from a “stacked” handwriting exemplar. The Court’s reference to the efficacy of cross-examination in this situation is much more of a comfort to an appellate court than a source of solace to the defendant and his counsel.
3. I agree with the Court’s condemnation of the lineup identifications here and the consequent in-court identifications, and I join in this part of its opinion. I would also reverse and remand for a new trial because of the use of the handwriting exemplars which were unconstitutionally obtained in the absence of advice to the accused as to the availability of counsel. I could not conclude that the violation of the privilege against self-incrimination implicit in the facts relating to the exemplars was waived in the absence of advice as to counsel. In re Gault, 387 U. S. 1, 41-42 (1967); Miranda v. Arizona, 384 U. S. 436 (1966).