Fifth Amendment Is Not Violated by Forced Extraction of Body Fluids
Schmerber v. California, Supreme Court of the United States (1966), 384 U.S. 757, 86 S.Ct. 1826
FACTS:
The Los Angeles Municipal Court convicted petitioner Schmerber of driving an automobile while under the influence of alcohol. A police officer arrested Schmerber at a hospital while he was receiving treatment for injuries suffered in an accident involving the automobile that he had been driving. At the direction of a police officer, a medical doctor took a blood sample from petitioner's body at the hospital.
The chemical analysis of his blood revealed a percent by weight of alcohol in his blood which indicated intoxication, and the report of this analysis was admitted in evidence at his trial. Petitioner's counsel objected to receipt of this evidence of the analysis on the ground that the blood had been withdrawn despite his refusal to consent to the test. He contended that the withdrawal of the blood and the admission of the analysis in evidence denied him privilege against self-incrimination under the Fifth Amendment and his rights under different provisions of the United States Constitution. The Appellate Department of the California Superior Court rejected these contentions and affirmed the conviction. In view of several constitutional decisions since the Court last considered the issues, the Supreme Court granted certiorari.
PROCEDURAL QUESTION:
Does the removal of bodily fluids from a person against the will of the individual and the use of the evidence against the person violate the Fifth Amendment privilege against self-incrimination?
HELD: No.
RATIONALE:
Mr. Justice Brennan delivered the opinion of the Court.
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THE PRIVILEGE AGAINST SELF-INCRIMINATION CLAIM.
Breithaupt [v. Abram, 352 U.S. 432] summarily rejected an argument that the withdrawal of blood and the admission of the analysis report involved in that state case violated the Fifth Amendment privilege of any person not to "be compelled in any criminal case to be a witness against himself," citing Twining v. New Jersey, 211 U.S. 78. But that case, holding that the protections of the Fourteenth Amendment do not embrace this Fifth Amendment privilege, has been succeeded by Malloy v. Hogan, 378 U.S. 1, 8. We there held that "[t]he Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement--the right of a person to remain silent unless he choose to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence." We therefore must now decide whether the withdrawal of the blood and admission in evidence of the analysis involved in this case violated petitioner's privilege. We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends.
It could not be denied that in requiring petitioner to submit to the withdrawal and chemical analysis of his blood, the State compelled him to submit to an attempt to discover evidence that might be used to prosecute him for a criminal offense. He submitted only after the police officer rejected his objection and directed the physician to proceed. The officer's direction to the physician to administer the test over petitioner's objection constituted compulsion for the purpose of the privilege. The critical question, then, is whether petitioner was thus compelled "to be a witness against himself."
If the scope of the privilege coincided with the complex of values it help to protect, we might be obliged to conclude that the privilege was violated. In Miranda v. Arizona, ante, at 460, the Court said of the interests protected by the privilege: "All these policies point to one overriding thought: the constitutional foundation underlying the privilege 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." The withdrawal of blood necessarily involves puncturing the skin for extraction, and the percent by weight of alcohol in that blood, as established by chemical analysis, is evidence of criminal guilt. Compelled submission fails on one view to respect the "inviolability of the human personality." Moreover, since it enables the State to rely on evidence forced from the accused, the compulsion violates at least one meaning of the requirement that the State procure the evidence against an accused "by its own independent labors."
As the passage in Miranda implicitly recognizes, however, the privilege has never been given the full scope which the values it helps to protect suggest. History and a long line of authorities in lower courts have consistently limited its protection to situations in which the State seeks to submerge those values by obtaining the evidence against an accused through "the cruel, simple expedient of compelling it from his own mouth .... In sum, the privilege is fulfilled only when the person is guaranteed the right `to remain silent unless he chooses to speak in the unfettered exercise of his own will."' Ibid.
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It is clear that the protection of the [Fifth Amendment] privilege [against self-incrimination] reaches an accused's communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers. Boyd v. United States, 116 U.S. 616. On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling "communications" or "testimony," but that compulsion which makes a suspect or accused the source of "real or physical evidence" does not violate it.
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In the present case . . . not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis. Petitioner's testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone. Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on [Fifth Amendment] privilege [against self-incrimination] grounds.
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Affirmed.
MR. JUSTICE BLACK with whom MR. JUSTICE DOUGLAS joins, dissenting
I would reverse petitioner's conviction. I agree with the Court that the Fourteenth Amendment made applicable to the States the Fifth Amendment's provision that "no person . . . shall be compelled in any criminal case to be a witness, against himself . . . ." But I disagree with the Court's holding that California did not violate petitioner's constitutional right against self-incrimination when it compelled him, against his will, to allow a doctor to puncture his blood vessels in order to extract a sample of blood and analyze it for alcoholic content, and then used that analysis of evidence to convict petitioner of a crime.
The Court admits that "the State compelled [petitioner] to submit to an attempt to discover evidence [in his blood] that might be [and was,] used to prosecute him for a criminal offense." To reach the conclusion that compelling a person to give his blood to help the State convict him is not equivalent to compelling him to be a witness against himself strikes me as quite an extraordinary feat. The Court, however, overcomes what had seemed to me to be an insuperable obstacle to its conclusion by holding that
". . . the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends." (Footnote omitted.)
I cannot agree that this distinction and reasoning of the Court justify denying petitioner his Bill of Rights' guarantee that he must not be compelled to be a witness against himself.
Notes
1. According to the Court, the drawing of a blood sample from Schmerber did not involve any forced testimonial communication. However, the intrusion of the hospital staff to extract the sample of blood implicated Fourth Amendment issues which require that the officer have probable cause for the search of the blood. The evanescent nature of alcohol in the blood effectively created the emergency which excused the failure to obtain a search warrant prior to making the intrusion into Schmerber's body. For additional material on emergency searches, consult Chapter 9.
2. If blood samples do not violate the privilege against self-incrimination, could a court require a person to make a voice recording for use by the prosecution? In United States v. Dionisio, 410 U.S. 1 (1973), in the context of a grand jury investigation, a trial court ordered Dionisio to make a voice recording for use by the prosecutor in a grand jury. Dionisio refused on the ground, among others, that to offer a sample of his voice would violate his Fifth Amendment privilege against self-incrimination in that giving the sample might be used against him in a criminal prosecution. The Supreme Court rejected Dionisio's Fifth Amendment argument with the conclusion that prior cases have uniformly rejected the contention that the compelled display of identifiable physical characteristics infringe on the privilege against compelled testimonial self-incrimination.
3. Should handwriting samples be treated like voice samples? The Court, in Gilbert v. California, 388 U.S.263, (1967), determined that the required giving of a handwriting sample did not violate the Fifth Amendment privilege against self-incrimination since the character or quality of one's written communication, in contrast to its content, is merely an identifying physical characteristic.
4. Physical appearance is not the subject of any Fifth Amendment claim as the Court held in United States v. Wade, 388 U.S. 218, (1967). In Wade, the Court approved a trial court order which required Wade to appear in a physical lineup and to utter the words used by a robbery suspect. A person's appearance may assist in providing the prosecution incriminating evidence, but appearance is not the same as requiring incriminating testimony from the individual.
5. Under Schmerber and numerous other cases, it has become clear that physical attributes such as fingerprints, weight, height, tone of speech, manner of handwriting, walk, general body stance, content of blood or other bodily fluids, and general appearance are not testimonially communicative and as such, are not subject to Fifth Amendment privilege self-incrimination claims. However, since all physical characteristics may assist in the process of conviction in a particular case, should the use of these attributes by the prosecution be covered by the Fifth Amendment? Why or why not?
GRAND JURY INDICTMENT AND INFORMATION
The Charging Instrument: Indictment or Information
A serious criminal prosecution may be initiated by either an indictment or an information. An indictment is the written accusation, presented by a grand jury to a court of competent jurisdiction which charges a person with an offense against the criminal law of the jurisdiction. The grand jury is composed of citizens of the jurisdiction who have been given the task of determining which persons have committed crimes within the jurisdiction. The grand jury returns an indictment whenever a specified majority of the jury determines that probable cause exists to believe an individual person has committed a particular crime or crimes. Serving a similar function, an information is a written accusation prepared by a prosecutor which names an individual and in plain language accuses that person of having perpetrated a specified crime.
Serious Federal Prosecutions Require Indictment
According to case law and consistent with the Fifth Amendment, the federal government must use an indictment to initiate a serious criminal case. The relevant portion of the Amendment provides that the federal government shall not cause a person to be "held to answer for a capital, or otherwise infamous crime, unless on the presentment or indictment of a Grand Jury." This portion of the Fifth Amendment has been effectuated by the Federal Rules of Criminal Procedure which necessitate a grand jury indictment for crimes for which the potential punishment exceeds one year. Since most rights guaranteed by the Constitution consist of waivable rights, the Federal Rules of Criminal Procedure provide for a potential defendant to waive the right to a grand jury indictment and consent to having an information used to initiate the formal criminal prosecution. A representative decision giving effect to the Fifth Amendment indictment requirement was United States v. Moreland, 258 U.S. 433, 42 S.Ct. 368 (1922), Next Lesson. The Court held that a federal charge of willfully neglecting or refusing to pay child support constituted an infamous crime necessitating a grand jury indictment prior to a federal prosecution.
Constitution Does not Require State Use of Indictment
While the indictment clause of the Fifth Amendment, as generally construed, requires the federal government to initiate the prosecution of serious federal crimes by indictment, the states are not so limited. Since the Supreme Court of the United States has never construed the Fifth Amendment requirement of a grand jury indictment to apply to serious state criminal cases, an accused does not possess a federal constitutional right to a grand jury indictment in a state prosecution. See Hurtado v. California, 110 U.S. 516 (1884), Next Lesson. Therefore, all states are free to grant a state created right to a grand jury indictment for whatever class of crimes they might choose. Numerous states (Ohio is illustrative) have state constitutional requirements which place the right to a grand jury indictment on a footing similar to federal prosecutions. See Article I, Section 10, Ohio Constitution, This Lesson. Like the federal provision permitting the future defendant to waive the right to an indictment, many state jurisdictions allow the suspect to waive the state-created right. As a representative example, the state of Ohio allows a felony defendant to waive the right to an indictment when done in writing and in open court. However, Ohio Rules of Criminal Procedure do not permit a waiver of indictment in a case punishable by death or life imprisonment. See Crim. R. 7(A). In contrast, the state of California allows prosecutions of a serious nature to be initiated by a prosecutor using an information or by the procurement of an indictment by a grand jury. If the prosecutor chooses to proceed by use of an information, a preliminary examination of the case against the defendant must occur and an order holding the defendant to answer for the alleged crime must be entered if the facts warrant. Following this process, the indictment shall be issued by the prosecutor. In any event, probable cause to believe that a particular individual committed a specified crime is the level of proof required for a prosecutor to file an information or for a grand jury to return an indictment. Consult the California statutes reprinted in This Lesson.
In jurisdictions which permit the initiation of serious criminal cases by information, individual state constitutions and statutes dictate the nature and form which the information takes. Typically, the information contains a concise statement that the accused has committed some specified offense against the state. It need not contain technical averments or allegations which are not essential to proof of guilt. While the prosecutor prepares the information in the name of the state, the information normally must conclude with the signature of the prosecutor or assistant prosecutor.
The criminal justice system exhibits numerous similarities in appearance and procedure in jurisdictions which exclusively or partially utilize the grand jury. As a general rule of practice, grand juries hear evidence, deliberate, and vote in secret. A prosecutor assists in selecting cases, presenting evidence and questioning witnesses who have been subpoenaed by the grand jury. A person who is a potential defendant possesses no right to testify, but when called to do so, must give evidence as any other witness. However, the potential defendant may refuse to give evidence indicative of personal criminality by invoking the Fifth Amendment privilege against compelled testimonial self-incrimination.
Grand Jury Hears Improperly Seized Evidence
Since the grand jury is only concerned with probable cause, procedural and evidentiary rules, customarily followed at trial traditionally see little application in the grand jury context. For example, the rules of evidence produce only a slight limitation on the type of hearsay, rumor, and innuendo permitted for grand jury consideration. Similarly, the exclusionary rule developed to ensure respect for the Fourth Amendment provides no protection for a person who has personally been the victim of an illegal search and seizure and who is subsequently questioned by a grand jury concerning the illegally seized evidence. In United States v. Calandra, 414 U.S. 338 (1974), the Court refused to allow the grand jury witness, Calandra, to litigate the question of whether he had been the victim of a Fourth Amendment violation when police allegedly entered his home illegally. The Court noted that a grand jury proceeding could not be characterized as an adversarial hearing in which the guilt or innocence of an accused is determined; it was only a preliminary ex parte investigation. Therefore, evidence which has arguably been illegally seized under the Fourth Amendment may be considered by a grand jury. By permitting the grand jury to consider virtually any shred of evidence, unencumbered by evidentiary rules or Fourth Amendment exclusions, the grand jury system operates with a minimum of judicial intervention and supervision and a maximum level of efficiency.
While the option to initiate a serious criminal case is limited by the United States Constitution, federal law, and state laws and constitutions, all serious criminal prosecutions begin through the use of an indictment or information. The requisite level of evidence for either charging vehicle involves only the determination of probable cause to believe that a particular person has committed a specified crime. Once the decision to initiate a criminal prosecution has been made and formal steps have been taken, the case proceeds without regard as to whether its genesis occurred in an information or from an indictment.
THE CONSTITUTION OF THE UNITED STATES, AMENDMENT V [1791]
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [Emphasis added.]
CONSTITUTION OF THE STATE OF OHIO, RIGHT TO INDICTMENT
Section 10. Trial for crimes; witness. Except in cases of impeachment, cases arising in the army and navy, or in the militia when in actual service in time of war or public danger, and cases involving offenses for which the penalty provided is less than imprisonment in the penitentiary, no person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a grand jury; and the number of persons necessary to constitute such grand jury and the number thereof necessary to concur in finding such indictment shall be determined by law. In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process to procure the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed; but provision may be made by law for the taking of the deposition by the accused or by the state, to be used for or against the accused, of any witness whose attendance can not be had at the trial, always securing to the accused means and the opportunity to be present in person and with counsel at the taking of such deposition, and to examine the witness face to face as fully and in the same manner as if in court. No person shall be compelled, in any criminal case, to be a witness against himself; but his failure to testify may be considered by the court and jury and may be the subject of comment by counsel. No person shall be twice put in jeopardy for the same offense. (Adopted Sept. 3, 1912.) [Emphasis added.]
California Government Code
Section 12552. Grand jury; powers and duties; filing of informations. The powers and duties of the Attorney General with respect to grand juries are prescribed in Sections 913 and 923 of the Penal Code.
The Attorney General may also file informations.
California Penal Code
Section 737. Offenses triable in superior court; prosecution by indictment or information; exceptions. All public offenses triable in the superior court must be prosecuted therein by indictment or information, except as provided in the Government Code, the Juvenile Court Law and Section 859a of this code.
Section 739. Offenses triable in superior court; information; filing; permissible charges; form. When a defendant has been examined and committed, as provided in Section 872, it shall be the duty of the district attorney of the county in which the offense is triable to file in the superior court of that county within 15 day's after the commitment, an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed. The information shall be in the name of the people of the State of California and subscribed by the district attorney. (Added by Stats.1951, c. 1674, p. 3831, Section 6.)
Section 913. Attorney general; power to demand impaneling. If a grand jury is not in existence, the Attorney General may demand the impaneling of a grand jury by those charged with the duty to do so, and upon such demand by him, it shall be their duty to do so.
Section 917. Inquiry into public offenses; presentment by indictment. The grand jury may inquire into all public offenses committed or triable within the county and present them to the court by indictment.
Section 923. Investigation of matters of criminal nature; presentation by attorney general. Whenever the Attorney General considers that the public interest requires, he may, with or without the concurrence of the district attorney, direct the grand jury to convene for the investigation and consideration of such matters of a criminal nature as he desires to submit to it. He may take full charge of the presentation of such matters to the grand jury, issue subpoenas, prepare indictments, and do all other things incident thereto to the same extent as the district attorney may do.
Section 940. Concurrence of jurors; number; endorsement. An indictment cannot be found without concurrence of at least 14 grand jurors in a county in which the required number of members of the grand jury is prescribed by Section 888.2 is 23, and at least 12 grand jurors in other counties. When so found it must be endorsed, "A true bill," and the endorsement must be signed by the foreman of the grand jury.