*1 January Argued affirmed October v. FISHER STATE OF OREGON 410 P. 2d argued Kerrigan, *2 the cause Portland, Thomas D. appellant. and filed a for brief George Joseph, Attorney, Deputy Port- M. District respondent. argued cause the brief On land, Attorney, George District and were Van Hoomissen, Deputy Attorney, Tom P. District Portland. Price, Before Chief Justice, McAllister, Perry, Jus- Holman Sloan, Goodwin, Denecke, Lusk, tices. J.
PERRY, The was convicted crime of utter- defendant appeals. ing forged check and bank discloses that defendant was arrested record morning 29, of June and was 1964, in Portland on police transported the East Precinct from station to having police After an station. ankle the Central police someone at the Central station, attended give sample was asked to of his hand- the defendant filling questionnaire, designated by writing by out a exemplar. Defendant an filled out the ex- handwriting. emplar At the own trial this ex- in his purposes comparing emplar of introduced for was with that of thereon cheek uttered by the defendant. contends trial court erred
The defendant exemplar admitting into evidence in that after self incrimination con- arrest his his Amendment to the Fifth in the Constitution of tained
éSl obtaining of States was violated in the although effectively exemplar he advised because, right of to remain he was not advised silent, legal right counsel which court held was a his this right of Sixth Amendment under the Constitution Neely, United States. State v. 289 Or 395 P2d 398 P2d interpretation by It must conceded majority Illinois, of this court of Escobedo v. expressed ed2d US 84 S Neely, supra, grants person State under arrest the constitutional to be informed of his to re main silent and to of and, therefore, rights question until he has been of informed these ing purpose obtaining for the oral admissions or guilt permissible. confessions question The narrow in this case then is whether police may obtain from a under arrest evi- *3 may dence of individual which later characteristics, be against informing used as evidence him, without first him to counsel. requiring
2. It to be seems well established that a supply identity defendant to evidence of his does not violate the Fifth Amendment of the Constitution may fingerprinted, He be United States. measured photographed. Kelly, United States v. 55 F2d ALR and cases 122, 83 cited 67, therein. even in the a a may trial of
Also, case, defendant required to exhibit himself in different costumes, States, 218 Holt v. United US 31 S 245, 2, 54 ed up glasses, to stand remove his Rutherford Tex Crim 121 State, v. SW2d or to re marks on his Chuey, veal tattoo v. arm, State Ah Rep Am33 530. Nev accepted that fact
It seems now to be a well identify handwriting as individualistic and is almost fingerprints. ing are lawfully a is denied
If no constitutional requiring which him to do acts arrested individual person by comparison that he is the disclose rea unable to find a valid committed a we are crime, holding has that a whose son comparison has had his constitutional been secured for privilege against self incrimina to counsel and People Harper, App2d tion invaded. States, F2d P2d 950; Stanfield judgment is affirmed. dissenting. GOODWIN, J., prepared to discuss in this case all I am not While under which the in the ab- state, circumstances may may pretrial not utilize or dis- sence of disagree major- covery I with the in criminal cases, ity’s holding a can be to manu- prove necessary that his hand the evidence facture forgery. wrote cooperation sought accused
Whenever
prosecution in order to obtain evidence to be
potential
ques-
against
Fifth-Amendment
him,
used
lawfully
accused
could
If the
have in-
arises.
tion
po-
self-incrimination,
voked
right to the assistance of
on the
counsel
issue
tential
Amendment also arises.
In other
the Sixth
under
attorney properly
whether an
must decide
we
words,
cooperate.
the defendant not to
advised
have
If
could
whether the defendant
must decide
was entitled
we
so,
*4
advice.
such
to
Neely,
239 Or
In State
(1964),
he
we held that a
must know that
right
and must
has the
to counsel
waive
Neely
interrogated.
before he can be
If the
case cor-
rectly
Amendment when interro-
construed the Sixth
objective,
production
gation
a
and if the
handwriting
protection
comes within the
of the Fifth
suspect ought
equally
have an
Amendment,
to
valid
counsel before he
be
can
induced to create in-
criminating
example
evidence in
a
the form of written
penmanship.
majority
holds that
the Fifth-Amendment
privilege
apply
to nontestimonial acts. There
authority
support
holding
is textbook
that counsel
necessary
necessary.
is not
because consent is not
See,
e.g., Wigmore,
§
(McNaughton
Evidence
1961).
necessary,
If consent indeed is not
rev,
I would
agree
that there
no
to have counsel tell the
accused that he has no choice.
if a
Thus,
can
compelled, against
prepare
portion
be
his will, to
him
the state’s evidence, counsel could have done
no
good.
protected right
If such is the
law,
has been
Early Oregon
proceed
violated.
cases seem to
on the
theory
production
of the evidence could not
compelled,
but that the
could be waived.
(1912),
Scott,
See State
63 Or
Virtually authority proposition all the for the compulsory Amendment the Fifth does not cover hand- upon writing purported analogy is based between involuntary and the surrender of such incriminating fingerprints, evidence as other foot- objects prints, or hair, blood, secreted in the sus- body. pect’s While distinction has been obscured *5 424 cases, ‹
in by of the decided and some many deprecated commentators, › I believe there a distinction in is prin the of taking existing between evidence which ciple the accused fi no and cooperation by requires forcing to create evidence without the in which, the accused not exist. fl of the would cooperation accused, telligent set with a review ably forth, The distinction is States v. Eggers, in 3 authorities, USCMA 191, 11 191 (1953). CMR reference to blood,
With fingerprints, photographs, of and the removal of tattoos, substances inspection the body cavities, police may ¡search, from and seize, the extract without the consent of because defendant, ‹ Cases McCormick, 'collected in Evidence 126 are and 264 (1954). frequently pointed It out the writers who defend incriminating (such compulsory the surrender -of evidence as body orifices, blood, like), from narcotics retrieved the that wording practice precise the of this offend the Fifth ¡shall any Amendment: No “be in criminal case argue himself.” The writers to be witness that the use of “witness” limits the reach of the the word amendment argument compulsion. appears to testimonial This to overlook existing possibility is, essentially, evidence a Fourth- question problem. Amendment When involves use of compulsion evidence, creation Fifth-Amendment easily ignored. is not so
› See, Falknor, Evidence, Survey e.g., 1953 Ann Am L 755. fi X-ray photograph gold of a an three When sho.wed rings large police intestine, in his administered an enema. Appeals procedure Criminal The Texas Court of did not think this Amendment, and, question pri offended the Fifth since marily problem, procedure a Fourth-Amendment held that did was reasonable thus not offend the Fourth Amendment. State, (1940). David Ash v. The 139 Tex Crim 141 341 SW2d But, cf., California, Rochin 342 US 72 S Ct L96 Ed holding involuntary (1952), 25 ALR2d 1396 emetics unrea sonable. fl Compare compulsory pregnancy, approved test where cooperation required, Summers, (1920), Phil Villaflor v. compulsory sample handwriting, disapproved with where in telligent cooperation required, Jose, Beltran v. Samson and (1929). Phil 570 police cooperation required. is not Thus, long they operate within the use reasonable force so cases collected the Fourth Amendment. See limits of Federal Power to and Search With- Seize Carden, (1964). out L Rev Warrant, 18 Vand cannot obtained of evidence which In case cooperation, a Fifth- without defendant’s however, problem Amendment arises. assume We cooperation. or starve a into cannot beat Rptr People Matteson, reversed on other *6 Rptr grounds, 61 Cal2d P2d 161 (1964). necessary A court order would therefore be compel production of the desired to evidence. I been unable to find case in which a have court has contempt power held that is available to assist prosecution compelling production of evi- dence of this kind. satisfactory say simply
It not a answer to privilege cover because it fingerprints. many years does not cover For courts thought prevent did not a comment on failure the defendant’s to take the stand. Such ancient proved “truth has uncouth.” See v. California, Griffin (1965). 1229, 14 85 Ct Ed2d 380 US S Supreme long ago States Court held Fifth Amendment interacts with the Fourth deny government existing to to seize in- criminating documents from the house or the Boyd suspect. States, v. United 116 US 616, 6 S (1886). L Ed 746 This court should not per- that a now first hold, time, whose by police, cannot be seized sonal documents with or solely for use as warrant, without evidence nonetheless be him, manufacture government’s pleasure documents at the for the same purpose. Our own earlier cases would indicate a con- trary supra. rule. State v. Scott, it
Further, seems inconsistent with Fifth recently Amendment as construed this court in con- say fession cases to while cannot that, forced to manufacture oral he can evidence, be forced my Neely to manufacture written evidence. In if view, was entitled to be advised of his right. defendant the case at bar had the same I dissent.