410 U.S. 19 (1973), 71-229, United States v. Dionisio

Docket Nº:71-229
Citation:410 U.S. 19, 93 S.Ct. 781, 35 L.Ed.2d 67
Party Name:United States v. Dionisio
Case Date:January 22, 1973
Court:United States Supreme Court

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410 U.S. 19 (1973)

93 S.Ct. 781, 35 L.Ed.2d 67

UNITED STATES, Petitioner,



UNITED STATES, Petitioner,


Richard J. MARA aka Richard J. Marasovich.

Nos. 71--229, 71--850.

United States Supreme Court.

January 22, 1973

For opinions of the Court see 93 S.Ct. 764, 774.

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[93 S.Ct. 781] Mr. Justice MARSHALL, dissenting.


The Court considers United States v. Wade, 388 U.S. 218, 221--223, 87 S.Ct. 1926, 1929--1930, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 265--267, 87 S.Ct. 1951, 1952--1954, 18 L.Ed.2d 1178 (1967), dispositive of respondent Dionisio's contention that compelled production of a voice exemplar would violate his Fifth Amendment privilege against compulsory self-incrimination. Respondent Mara also argued below that compelled production of the handwriting and printing exemplars sought from him would

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violate his Fifth Amendment privilege. I assume the Court would consider Wade and Gilbert to be dispositive of that claim as well. 1 The Court reads those cases as holding that voice and handwriting exemplars may be sought for the exclusive purpose of measuring 'the physical properties' of the witness' voice or handwriting without running afoul of the Fifth Amendment privilege. 410 U.S. 7, 93 S.Ct. 768. Such identification evidence is not within the purview of the Fifth Amendment, the Court says, for, at least since Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966), it has been clear that while 'the privilege is a bar against compelling 'communications' or 'testimony,' . . . compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it.'

I was not a Member of this Court when Wade and Gilbert were decided. Had I been, I would have found it most difficult to join those decisions insofar as they dealt with the Fifth Amendment privilege. Since, as I discuss in Part II, I consider the Fourth Amendment to require affirmance of the decisions below in these cases, I need not rely at this time upon the Fifth Amendment privilege. Nevertheless, I feel constrained to express here at least my serious reservations concerning the Fifth Amendment portions of Wade and Gilbert, since those decisions are so central to the Court's result today.

The root of my difficulty with Wade and Gilbert is the testimonial evidence limitation that has been imposed upon the Fifth Amendment privilege in the [93 S.Ct. 782] decisions of this Court. That limitation is at odds with

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what I have always understood to be the function of the privilege. I would, of course, include testimonial evidence within the privilege, but I have grave difficulty drawing a line there. For I cannot accept the notion that the Government can compel a man to cooperate affirmatively in securing incriminating evidence when that evidence could not be obtained without the cooperation of the suspect. Indeed, until Wade and Gilbert, the Court had never carried the testimonial limitation so far as to allow law enforcement officials to enlist an individual's overt assistance--that is, to enlist his will--in incriminating himself. And I remain unable to discern any substantial constitutional footing on which to rest that limitation on the reach of the privilege.

Certainly it is difficult to draw very much support for the testimonial limitation from the language of the Amendment itself. The Fifth Amendment provides that '(n)o person . . . shall be compelled in any criminal case to be a witness against himself . . ..' Nowhere is the privilege explicitly restricted to testimonial evidence. To read such a limitation into the privilege through its reference to 'witness' is just the sort of crabbed construction of the provision that this Court has long eschewed. Thus, some 80 years ago the Court rejected the contention that a grand jury witness could not invoke the privilege because it applied, in terms, only in a 'criminal case.' Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110 (1892). The Court emphasized that the privilege 'is as broad as the mischief against which it seeks to guard.' Ibid. Even earlier, the Court, in holding that the privilege could be invoked in the context of a civil forfeiture proceeding, had warned that:

'(C)onstitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation

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of the right, as if it consisted more in sound than in substance.' Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746 (1886).

Moreover, Boyd itself, which involved a subpoena directed at private papers, makes clear that 'witness' is not to be restricted to the act of giving oral testimony against oneself. Rather, that decision suggests what I believe to be the most reasonable construction of the protection afforded by the privilege, namely, protection against being 'compell(ed) . . . to furnish evidence against' oneself, Id., at 637, 6 S.Ct., at 536. See also Schmerber v. California, 384 U.S., at 776--777, 86 S.Ct., at 1838--1839 (Black, J., dissenting).

Such a construction is dictated by the purpose of the privilege. In part, of course, the privilege derives from the view that certain forms of compelled evidence are inherently unreliable. See, e.g., In re Gault, 387 U.S. 1, 47, 87 S.Ct. 1428, 1454, 18 L.Ed.2d 527 (1967). But the privilege--as a constitutional guarantee subject to invocation by the individual--is obviously far more than a rule concerned simply with the probative force of certain evidence. Its roots 'tap the basic stream of religious and political principle (and reflect) the limits of the individual's attornment to the state . . ..' Ibid. Its 'constitutional foundation . . . is the respect a government--state or federal--must accord to the dignity and integrity of its citizens. To maintain a 'fair state-individual balance,' to require the government 'to shoulder the entire load' . . ., to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth.' Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 1620, 16 L.Ed.2d 694 (1966). Cf. also Rogers v. Richmond, 365 U.S. 534, 540--541, 81 S.Ct. 735, 739--740, 5 L.Ed.2d 760 (1961). It is only by prohibiting the [93 S.Ct. 783] Government from compelling an individual to cooperate

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affirmatively in securing incriminating evidence which could not be obtained without his active assistance, that 'the inviolability of the human personality' is assured. In my view, the testimonial limitation on the privilege simply fails to take account of this purpose.

The root of the testimonial limitation seems to be Mr. Justice Holmes' opinion for the Court in Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910). In Holt, the defendant challenged the admission at trial of certain testimony that a blouse belonged to the defendant. A witness testified that defendant put on the blouse and that it fitted him. The defendant argued that this testimony violated his Fifth Amendment privilege because he had acted under duress. In the course of disposing of the defendant's argument, Mr. Justice Holmes said that 'the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.' Id., at 252--253, 31 S.Ct., at 6. This remark can only be considered dictum, however, for the case arose before this Court established the rule that illegally seized evidence may not be admitted in federal court, see Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and thus Holt's claim of privilege was ultimately disposed of simply on the ground that 'when (a man) is exhibited, whether voluntarily or by order, and even if the order goes too far, the evidence, if material, is competent. Adams v. New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575.' 218 U.S., at 253, 31 S.Ct., at 6.

With its decision in Schmerber, however, the Court elevated the dictum of Holt to full constitutional stature. Mr. Justice Holmes' language was central to the Court's conclusion that the taking of a blood sample, over the objection of the individual, to determine alcoholic content was not barred by the Fifth Amendment privilege since

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the resulting blood test evidence 'was neither (the individual's) testimony nor evidence relating to some communicative act . . ..' 384 U.S., at 765, 86 S.Ct., at 1833. Indeed, the Court appeared to consider it established since Holt that the Fifth Amendment privilege extended only to "testimony" or "communications," but not to "real or physical evidence," id., at 764, 86 S.Ct., at 1832; and this 'established' principle was sufficient, for the Court, to dispose of any 'loose dicta' in Miranda that might suggest a more extensive purpose for the privilege.

After Schmerber, Wade and Gilbert, were relatively easy steps for a Court focusing exclusively on the nature of the evidence compelled. Thus, the Court indicated that 'compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber,' was 'no different from compelling Schmerber to provide a blood sample or Holt to wear the blouse.' 388 U.S., at 222, 87 S.Ct., at 1930, 18 L.Ed.2d 1149. Similarly, in Gilbert, 388 U.S., at 266--267, 87 S.Ct., at 1953--1954, 18 L.Ed.2d 1178, the Court reasoned that '(a) mere handwriting exemplar, in contrast to the content of what is written, like...

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