Leach, J.
The decision of the Court of Appeals, reversing the judgment of delinquency, set forth “four grounds for doing so on the record in this case.” Essentially, the Court of Appeals held that the trial court had erred (1) in not suppressing the handwriting exemplar, (2) [37] in excluding the parents from the courtroom until they had testified as witnesses, under an order for the separation of witnesses, (3) in the exclusion of certain testimony on the basis of noncompliance with the requirements of R. 0. 2945.58, relative to notice of intention to claim an alibi, and (4) in the overruling of a motion to strike certain testimony of the Fire Chief of Independence, Ohio. On consideration of the issues presented herein, we find ourselves in disagreement with the Court of Appeals, and, thus, we reverse.
I
The Court of Appeals concluded that the handwriting exemplar should have been suppressed, both on the basis of the Fifth Amendment privilege against self-incrimination and on the basis of the Fourth Amendment privilege against “unreasonable searches and seizures.” In concluding a Fifth Amendment violation, the Court of Appeals attached particular significance to the fact that the handwriting exemplar contained “the very words written on the mirror” and “thus should have been suppressed on this ground.” Essentially it appears to have been the view of the Court of Appeals that the exemplar thus had a “special testimonial value,” and thus was required to be suppressed in the admitted absence of any Miranda warnings.
In support of this premise the court cited two cases, Serao v. United States (1968), 390 U. S. 202, and United States v. Green (1968), 282 F. Supp. 373. In Serao, the United States Court of Appeals of the Second Circuit (367 F. 2d 347) had rejected the defendant’s claim that the Fifth Amendment privilege could be a basis for excluding a handwriting specimen of the defendant, originally executed as a communicative writing but which was used solely as a handwriting standard for identification purposes and which did not communicate any information relating to the issues being tried. While, as noted in the Court of Appeals decision, the judgment of the Second Circuit Court of Appeals in Serao was reversed by the United States Supreme Court, its short per curiam opinion (390 U. S. 202) [38] merely ordered that “the judgments of the courts below are vacated and the cases are remanded for further consideration in the light of Marchetti v. United States,” 390 U. S. 39.
The holding of the United States Supreme Court in Marchetti was not concerned in any way with handwriting exemplars. Instead, it held that the statutory obligations to register and to pay an occupational tax for engaging in the business of accepting wagers, as required by federal statutes, were essentially inseparable elements of a single registration procedure; that for purposes of the constitutional privilege against self-incrimination, wagering is an area permeated with criminal statutes; and thus that persons asserting the constitutional privilege against self-incrimination could not be convicted for failing to comply with these statutory requirements.
The Green case, supra, involved an action wherein the government sought a court order to compel the defendant to furnish a handwriting exemplar displaying selected phrases allegedly germane to the prosecution. The United States District Court for the Southern District of Indiana refused to so order, pointing out that since the defendant was employed by the United States, the government already had samples of his handwriting available through this employment. That court attempted to distinguish the holdings of the United States Supreme Court in Schmerber v. California (1966), 384 U. S. 757, and Gilbert v. California (1967), 388 U. S. 263, upon the basis that in Gilbert the defendant had voluntarily given handwriting exemplars, and upon the basis, with which we are not in agreement, that “the result of requiring the accused to write his name would have the same far-reaching effect as if the accused were required to make a verbal or written admission.”
In the instant case, it is admitted that the exemplar was given voluntarily. An examination of the exemplar clearly indicates that it contains nothing “testimonial” in character, and from an evidentiary standpoint it was used solely for handwriting identification purposes. While it did contain three of the four words printed on the mirror, [39] it also contained, on what appears to be a standard form of the detective bureau, James Ostrowski’s printing of some fourteen names, three street addresses, and all of the Arabic numerals. The expert testimony, both of the prosecution and the defense, was not limited merely to a comparison of the three words which appeared both on the mirror and on the exemplar.
Schmerber, supra, at page 764, draws a distinction between “communications” or “testimony” and “that compulsion which makes a suspect or accused the source of ‘real or physical evidence.’ ” In this connection, see the opinion of Mr. Justice Holmes in Holt v. United States (1910), 218 U. S. 245. That the principle announced in Holt and Schmerber is applicable to handwriting exemplars has been recognized in Gilbert v. California, supra (388 U. S. 263):
“* * * The taking of the exemplars did not violate petitioner’s Fifth Amendment privilege against self-incrimination. The privilege reaches only compulsion of ‘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,’ and not ‘compulsion which makes a suspect or accused the source of “real or physical evidence”. . . .’ Schmerber v. California, 384 U. S. 757, 763-764. One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, supra, at 222-223 * * *.”
In United States v. Wade (1967), 388 U. S. 218, 222, decided the same day as Gilbert, the court stated that “compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a ‘testimonial’ nature”; that such compulsion only required the [40] defendant “to nse a voice as an identifying physical characteristic, not to speak his gnilt.”
Free access — add to your briefcase to read the full text and ask questions with AI
Leach, J.
The decision of the Court of Appeals, reversing the judgment of delinquency, set forth “four grounds for doing so on the record in this case.” Essentially, the Court of Appeals held that the trial court had erred (1) in not suppressing the handwriting exemplar, (2) [37] in excluding the parents from the courtroom until they had testified as witnesses, under an order for the separation of witnesses, (3) in the exclusion of certain testimony on the basis of noncompliance with the requirements of R. 0. 2945.58, relative to notice of intention to claim an alibi, and (4) in the overruling of a motion to strike certain testimony of the Fire Chief of Independence, Ohio. On consideration of the issues presented herein, we find ourselves in disagreement with the Court of Appeals, and, thus, we reverse.
I
The Court of Appeals concluded that the handwriting exemplar should have been suppressed, both on the basis of the Fifth Amendment privilege against self-incrimination and on the basis of the Fourth Amendment privilege against “unreasonable searches and seizures.” In concluding a Fifth Amendment violation, the Court of Appeals attached particular significance to the fact that the handwriting exemplar contained “the very words written on the mirror” and “thus should have been suppressed on this ground.” Essentially it appears to have been the view of the Court of Appeals that the exemplar thus had a “special testimonial value,” and thus was required to be suppressed in the admitted absence of any Miranda warnings.
In support of this premise the court cited two cases, Serao v. United States (1968), 390 U. S. 202, and United States v. Green (1968), 282 F. Supp. 373. In Serao, the United States Court of Appeals of the Second Circuit (367 F. 2d 347) had rejected the defendant’s claim that the Fifth Amendment privilege could be a basis for excluding a handwriting specimen of the defendant, originally executed as a communicative writing but which was used solely as a handwriting standard for identification purposes and which did not communicate any information relating to the issues being tried. While, as noted in the Court of Appeals decision, the judgment of the Second Circuit Court of Appeals in Serao was reversed by the United States Supreme Court, its short per curiam opinion (390 U. S. 202) [38] merely ordered that “the judgments of the courts below are vacated and the cases are remanded for further consideration in the light of Marchetti v. United States,” 390 U. S. 39.
The holding of the United States Supreme Court in Marchetti was not concerned in any way with handwriting exemplars. Instead, it held that the statutory obligations to register and to pay an occupational tax for engaging in the business of accepting wagers, as required by federal statutes, were essentially inseparable elements of a single registration procedure; that for purposes of the constitutional privilege against self-incrimination, wagering is an area permeated with criminal statutes; and thus that persons asserting the constitutional privilege against self-incrimination could not be convicted for failing to comply with these statutory requirements.
The Green case, supra, involved an action wherein the government sought a court order to compel the defendant to furnish a handwriting exemplar displaying selected phrases allegedly germane to the prosecution. The United States District Court for the Southern District of Indiana refused to so order, pointing out that since the defendant was employed by the United States, the government already had samples of his handwriting available through this employment. That court attempted to distinguish the holdings of the United States Supreme Court in Schmerber v. California (1966), 384 U. S. 757, and Gilbert v. California (1967), 388 U. S. 263, upon the basis that in Gilbert the defendant had voluntarily given handwriting exemplars, and upon the basis, with which we are not in agreement, that “the result of requiring the accused to write his name would have the same far-reaching effect as if the accused were required to make a verbal or written admission.”
In the instant case, it is admitted that the exemplar was given voluntarily. An examination of the exemplar clearly indicates that it contains nothing “testimonial” in character, and from an evidentiary standpoint it was used solely for handwriting identification purposes. While it did contain three of the four words printed on the mirror, [39] it also contained, on what appears to be a standard form of the detective bureau, James Ostrowski’s printing of some fourteen names, three street addresses, and all of the Arabic numerals. The expert testimony, both of the prosecution and the defense, was not limited merely to a comparison of the three words which appeared both on the mirror and on the exemplar.
Schmerber, supra, at page 764, draws a distinction between “communications” or “testimony” and “that compulsion which makes a suspect or accused the source of ‘real or physical evidence.’ ” In this connection, see the opinion of Mr. Justice Holmes in Holt v. United States (1910), 218 U. S. 245. That the principle announced in Holt and Schmerber is applicable to handwriting exemplars has been recognized in Gilbert v. California, supra (388 U. S. 263):
“* * * The taking of the exemplars did not violate petitioner’s Fifth Amendment privilege against self-incrimination. The privilege reaches only compulsion of ‘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,’ and not ‘compulsion which makes a suspect or accused the source of “real or physical evidence”. . . .’ Schmerber v. California, 384 U. S. 757, 763-764. One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, supra, at 222-223 * * *.”
In United States v. Wade (1967), 388 U. S. 218, 222, decided the same day as Gilbert, the court stated that “compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a ‘testimonial’ nature”; that such compulsion only required the [40] defendant “to nse a voice as an identifying physical characteristic, not to speak his gnilt.”
We conclude, therefore, that a handwriting exemplar, used solely for identification purposes, is a mere identifying physical characteristic, and as such is outside the scope of the Fifth Amendment privilege against self-incrimination—even if the words written are identical to the words contained in a writing directly linked to the crime. Further, there is no requirement that Miranda warnings he given prior to the giving of such a handwriting exemplar.
In the instant case, as heretofore noted, the Court of Appeals did not rely solely upon a claimed violation of the Fifth Amendment privilege as a basis for its holding that the handwriting exemplar should have been suppressed. It also found that the exemplar was taken under circumstances which constituted a violation of the juvenile’s Fourth Amendment rights against “unreasonable searches and seizures”; thus, that the exemplar should have been suppressed as “tainted fruit” under the exclusionary doctrine of Wong Sun v. United States (1963), 371 U. S. 471. In Wong Sun, the United States Supreme Court held that any evidence obtained as a product of an unlawful arrest constitutes tainted “fruit” thereof and thus must be excluded from evidence.
Tn Davis v. Mississippi (1969), 394 U. S. 721, the Supreme Court held that detention for the sole purpose of obtaining fingerprints and without any probable cause for arrest or detention constituted an unreasonable seizure of the person in violation of the Fourth Amendment, and thus that fingerprints so obtained were inadmissible at trial as “tainted fruit” of the unlawful arrest. Thus the Davis case stands for the proposition that even mere “identifying physical characteristics,” such as fingerprints and handwriting exemplars, may be viewed as “tainted fruit” under the exclusionary doctrine, if such is the product of an unreasonable search or seizure.
Tn the instant case, however, there was no evidence of an unlawful arrest and no evidence that the handwriting exemplar was given involuntarily. Thus, there was no [41] showing of a violation of the Fourth Amendment privilege against unlawful search and seizure, and thus no basis for excluding the exemplar as being “tainted fruit” resulting from such a violation.
Here, the record shows that the juvenile was not detained unlawfully, but instead was questioned in his own home under circumstances which indicate that no arrest, either lawful or unlawful, was made at that time.