People v. Rinaldi
| Decision Date | 21 July 1970 |
| Parties | PEOPLE of the State of New York, Plaintiff, v. Peter RINALDI et al., Defendants. |
| Court | New York County Court |
The question presented here involves the right of the prosecution to compel defendants, under the compulsion of contempt, to furnish samples of their handwriting for comparison with certain signatures on affidavits submitted to the Appellate Division.
Each of the defendants has been indicted by a Grand Jury of a violation of Section 215.40 of the Penal Law which is entitled: Tampering with Physical Evidence. In substance, it is claimed that each with intent that it be used or introduced in an official proceeding or a prospective official proceeding, he knowingly makes, devises or prepares false physical evidence, in this case, affidavits.
Since we are unable to find New York State cases on this subject, it will be necessary to review the few federal and state court decisions available at this time.
The subject of handwriting exemplars appears to have found new life beginning with the Supreme Court cases of Schmerber v. California 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Schmerber seemed to cite with approval various state and federal cases affirming the constitutionality of fingerprinting, photographing, speaking or writing for identification.
Although a few earlier cases had sought to distinguish between fingerprinting, photographing and other physical observation of a defendant and requiring a defendant to speak or write on the ground that the former required mere passive cooperation whereas the latter required an active cooperation, in the case of Gilbert, supra, the Supreme Court ruled that to require a handwriting exemplar did not impair a defendant's privilege against self-incrimination.
That Gilbert seemed to legitimatize the taking of handwriting exemplars has been assumed by the courts which have since considered the matter.
State v. Johnson (Iowa 1968) 155 N.W.2d 512;
Smith v. State of Oklahoma (Okl.Cr.App.1969) 462 P.2d 328;
United States ex rel. Harris v. Hendrick (D.C.Pa.1969) 300 F.Supp. 554;
United States v. Vignera (D.C.S.D. New York, 1969) 307 F.Supp. 136;
United States v. Bandy (C.A.8th 1970) 421 F.2d 646.
In Lewis v. United States, 127 U.S.App.D.C. 269, 382 F.2d 817 (1967), certiorari denied 389 U.S. 962, 88 S.Ct. 350, 19 L.Ed.2d 377, the question was whether the Government could compel a suspect to make a sample of his handwriting when no counsel was present and before he was taken before a committing magistrate. Justice Burger (now Chief Justice), writing for the court held that there was no violation of either the Fifth or Sixth Amendments and that the appellant's writing could have been compelled at any stage after he was before the court.
In United States v. Doe, 405 F.2d 436, 438, the defendant was held in contempt for failure to produce exemplars before a Grand Jury. (see 295 F.Supp. 956, 957). On appeal, the court indicated that holding the defendant in contempt while the Grand Jury was in session was not excessive and in any event, the defendant would be subject to further court order after any indictment was returned.
In United States v. Izzi, 427 F.2d 293 (April 20, 1970) the United States Court of Appeals, Second Circuit, gave further meaning to the right of the prosecution to compel the furnishing of handwriting exemplars. In that case, the defendant in furnishing the exemplars, apparently wrote differently than his normal handwriting. The Government attempted to explain the difference between the exemplars and the signature sought to be identified. The court indicated that if Gilbert v. California, supra, is to be meaningful that the Government should be allowed to explain the...
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