Odds and Ends
Bodily Extractions
DPC is violated when it shocks the conscious
Ridiculous to think that coerced confessions must be excluded but extractions by force not
Rochin: police took him to hospital and forced him to vomit in order to recover pills that he swallowed
5th amen only applies to testimonial or communicative evidence
Extraction of physical evidence is not testimonial
Schmerber: Police ordered doctor to take his blood against his will, 5th amen does not apply
Search within 4th amen
Schmerber: taking blood was a search but it was reasonable because of exigent circumstances
Reasonableness of surgical intrusions beneath the skin require a case by case weighing
Balance individual’s interest in privacy and security vs society’s interest in conducting procedure
Winston v Lee: Unreasonable to require surgery to get out bullet in shoulder
Maryland v King: taking a buccal swab is reasonable under the 4th amen because it is legitimate routine booking procedure and is important for identification purposes; no more intrusive than a fingerprint
Factors to look at
Health and safety risk
Degree of intrusion
VS community’s interest in determining guilt
Need for evidence
Lineups
5th amen
Compelling an accused merely to exhibit his person for observation involves no compulsion of accused having to give testimonial evidence
6th amen
After indictment, entitled to have lawyer present during a lineup; this is a critical stage of the proceeding
Wade: He was entitled to have his counsel present absent an intelligent waiver
Wade only applies after indictment (Kirby)
Evidence of out of court ID is not excluded
Witness can still pick out D at trail so long as prosecutor can show they are basing ID on something other than lineup
Wade does not apply to pictures (Ash)
DPC
In order for DPC to be violated need to show that the
Identification procedure is unnecessarily and unduly suggestive
Substantially likely to result in misidentification
Simmons: not unnecessarily suggestive in showing photos to bank employees because it was essential for FBI to determine if they were on the right track swiftly
Neils: victim gave an accurate description, spent a long time with her attacker, had been shown several suspects and had never misidentified someone in the past—so not so suggestive as to violate DPC
Incriminating Documents
Gov can get a search warrant to search your computer or get your papers
Old rule (Boyd): police wanted invoice of glass because they were alleging failure to pay duty on an import
Heart of 4th amen is protection against seizure of docs
Something special about papers—papers are a route into mind
Especially invasive
Mere evidence rule originated here
5th amen protects against compelled self incrimination, not the disclosure of private information
Andersen: a party is privileged from producing the evidence, but not from its production; he was not compelled to make the documents pertaining to Lot 13T; police could seize papers
This may be different if you seized someone’s private diary and used that to convict him of a crime
But there is a testimonial aspect to subpoenas
Act of handing over documents can be testimonial
Gov uses immunity to get around this
Prosecutors must give use and derivative use immunity
5th amen protects against a prosecutor’s use of incriminating documents derived directly or indirectly from compelled testimony
Hubbel: broad fishing expedition for documents, D’s act of producing the documents led to the his prosecution
Nontestimonial statements
Blood isn’t testimony
Words aren’t testimony if only use of the words is the nontestimonial or physical characteristics of the words
Dionisio: compelling him to give a voice exemplar is nontestimonial; he is being forced to speak, but words are only being used for physical characteristics
Muniz: just interested in whether his speech was slurred; but one question...