Hansen v. Owens, No. 16977

• Court: Utah Supreme Court
• Writing for the Court: CROCKETT; In original proceedings, the petitioner requests this Court to enjoin enforcement of an order of the defendant; STEWART; WILKINS, J., concurs in the dissenting opinion of STEWART
• Citation: 619 P.2d 315
• Parties: Nathan D. HANSEN, Petitioner, v. The Honorable Robert F. OWENS, Judge of the Circuit Court, Washington County, Defendant.
• Docket Number: No. 16977
• Decision Date: 08 October 1980

Page 315

619 P.2d 315 Nathan D. HANSEN, Petitioner,
v.
The Honorable Robert F. OWENS, Judge of the Circuit Court,
Washington County, Defendant. No. 16977. Supreme Court of Utah. Oct. 8, 1980.

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Phillip L. Foremaster, St. George, for petitioner.

Gary W. Pendleton, Deputy Washington County Atty., St. George, for defendant.

CROCKETT, Chief Justice:

In original proceedings, the petitioner requests this Court to enjoin enforcement of an order of the defendant, Circuit Judge of Washington County, which directs petitioner to furnish examples of his handwriting for use in connection with a charge of forgery against him.

This petition focuses attention upon the meaning and effect to be given to the protective provisions of our state and federal constitutions relating to being required to incriminate one's self. ¹ It is to be noted that the Fifth Amendment to the United States Constitution provides that '[No person] shall be compelled in any criminal case to be a witness against himself, . . ..' Whereas, our state provision provides that 'The accused shall not be compelled to give evidence against himself.'

On defendant's behalf, it is urged that the two constitutional provisions, even though not identical in wording, are essentially the same in meaning. From that premise, support is garnered from holdings of the United States Supreme Court that the privilege against self-incrimination does not protect an accused from being the source of real or physical evidence against him. ² It is urged that such rulings are applicable in the instant case.

We take cognizance of the fact that federal courts have generally held that the privilege applies only to evidence of a 'testimonial' nature; and we do not doubt their soundness as applied to their particular facts. However, it seems significant that the framers of our Utah Constitution, in Section 12 of Article I, stated that 'The accused shall not be compelled to give evidence against himself; a wife shall not be compelled to testify against her husband, nor a husband against his wife . . ..' (All emphasis herein is added.)

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In legal formulations, it is to be assumed that the words used were chosen advisedly. ³ This is particularly true in such foundational documents as constitutions, which it can be assumed are framed with greater than usual care and deliberation. Consequently, when terms of clearly different meanings are used within the same framework, each should be given its own separate, commonly understood meaning. Judged in that light, it seems reasonable to assume that the phrase 'to give evidence against himself,' as used in our constitution, was intended to mean something different and broader than the phrase 'to be a witness against himself' as used in the federal constitution. Such a distinction has heretofore been recognized by this Court. ⁴

The significant aspect of this case is made evident by comparison with our case of State v. Van Dam, ⁵ cited by the defendant. There it was held not to be error to introduce evidence relating to hair samples obtained from the accused. There was not involved any compulsion or affirmative act by him. This situation is quite different. Here, the accused has made timely objection to being compelled to give evidence, which he asserts may be incriminating. In reference to the cases relied upon by the defendant, we note that this case goes beyond making observations or comparisons of an accused's appearance, or of his body, or its parts or substances obtained therefrom. We do not mean this decision to be understood as going beyond its particular facts. The order directs the accused to do the affirmative act of writing. Considered under our Utah constitutional provision, we see no controlling distinctions between making him respond to questions for possible use against him relating to an alleged crime, and making him write for that purpose. ⁶

We further observe that we are somewhat perplexed by this proceeding because it is hard to believe that exemplars of the petitioner's handwriting could not be obtained from some other source. Nevertheless, it is our opinion that the order made is violative of the rights assured the petitioner by the provision of our constitution referred to and that it should be vacated. No costs awarded.

MAUGHAN and HALL, JJ., concur.

STEWART, Justice (dissenting):

I respectfully dissent.

In my view the privilege against self-incrimination contained in Article I, § 12 of the Utah Constitution is testimonial in nature and does not encompass a right to refuse to give a handwriting exemplar. The privilege extends only to prohibiting the state from calling the defendant to take the stand, compelling or improperly industing a defendant to give oral testimony against himself, and prohibiting imporper comment on the exercise of the privilege.

The majority's conclusion that there is 'little distinction between making him [the defendant] respondent to questions for possible

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use against him . . . and making him write for that purpose,' has a superficial but basically unsound logic to it. If a person were required to answer questions in writing, there would be a constitutional violation, but that is not the case here. The only thing at issue is whether the state can compel the display of a physical manifestation, not for the content of the writing, but only for the characteristics of the defendant's handwriting.

The majority opinion expands the constitutional privilege against self-incrimination to an extent which was not intended by the framers of our Constitution, which does not serve any fundamental constitutional purpose, which is in conflict with the manner in which other jurisdictions have construed similar or the same constitutional language, and which raises serious questions as to the continued admissibility of various kinds of evidence often critical to criminal prosecutions.

The majority's construction of the privilege extends beyond the interests that the privilege was designed to protect. The order was simply to obtain evidence of what is a physical characteristic of the defendant: the manner in which he writes. That the writing may serve to identify the defendant as one who committed a crime is of no consequence. There is no essential difference between requiring a writing sameple and having a defendant stand for purposes of identification, walk in front of a jury to between requiring a writing sample clothing. All such affirmative acts are generally held not to violate the privilege against self-incrimination. McCormick on Evidence § 124 (2nd ed. 1972). Yet, on the court's rationale, all those actions would be prohibited. The result is likely to create chaos in this important area of the law. Moreover, it is inconsistent with State v. Spencer, 28 Utah 2d 12, 497 P.2d 636 (1972), in which this Court held that the privilege was not violated by requiring an accused to appear in a lineup.

The Utah constitutional provision takes its meaning from the nature of the privilege as it had developed at common law. Referring to the federal and state constitutional provisions that recognize a privilege against self-incrimination, Wigmore in 8 Wigmore on Evidence § 2252 at 320-24 (3rd ed. 1940) found 'universal judicial acceptance' of the view that the variety of phrasings of constitutional provisions providing protection from self-incrimination 'neither enlarges nor narrows the scope of the privilege as already accepted, understood, and judicially developed in the common law.' The specific application of the principle is 'to be determined by the historical and logical requirements of the principle, regardless of the particular words of a particular constitution.' Id. at 324.

State v. Quarles, 13 Ark. 307, 311 (1853), in referring to the privilege, emphasized: '[N]o one, be he witness or accused, can pretend to claim it beyond its scope at the common law . . ..' Referring to the federal and state constitutional wording of the privilege, Wigmore stressed:

But this constitutional sanction, being merely a recognition and not a new creation, has not altered the tenor and scope of the privilege; it has merely given greater permanence to the traditional rule as handed down to us. The framers of the Constitutions did not intend to codify the various details of the rule, or to alter in any respect its known bearings, but merely to describe it sufficiently for identification as a...