State v. Fisher , 242 Or. 419 ( 1966 )

PERRY, J.

The defendant was convicted of the crime of uttering a forged bank check and appeals.

The record discloses that defendant was arrested in Portland on the morning of June 29, 1964, and was transported from the East Precinct police station to the Central police station. After having an ankle attended to by someone at the Central police station, the defendant was asked to give a sample of his handwriting by filling out a questionnaire, designated by the police an exemplar. Defendant filled out the exemplar in his own handwriting. At the trial this exemplar was introduced for purposes of comparing the handwriting thereon with that of the cheek uttered by the defendant.

The defendant contends that the trial court erred in admitting into evidence the exemplar in that after his arrest his privilege against self incrimination contained in the Fifth Amendment to the Constitution of the United States was violated in the obtaining of the exemplar because, although he was effectively advised of his right to remain silent, he was not advised of his right to legal counsel which this court held was a Sixth Amendment right under the Constitution of the United States. State v. Neely, 289 Or 487, 395 P2d 557, 398 P2d 482.

It must be conceded that the interpretation by the majority of this court of Escobedo v. Illinois, 378 US 478, 84 S Ct 1758, 12 L ed2d 977, as expressed in State v. Neely, supra, grants a person under arrest the constitutional right to be informed of his right to remain silent and to his right of counsel, and, therefore, until he has been informed of these rights no questioning for the purpose of obtaining oral admissions or confessions of guilt is permissible.

The narrow question in this case then is whether the police may obtain from a person under arrest evidence of individual characteristics, which may later be used as evidence against him, without first informing him of his right to counsel.

2. It seems to be well established that requiring a defendant to supply evidence of his identity does not violate the Fifth Amendment of the Constitution of the United States. He may be fingerprinted, measured and photographed. United States v. Kelly, 55 F2d 67, 83 ALR 122, and cases cited therein.

Also, even in the trial of a case, a defendant may be required to exhibit himself in different costumes, Holt v. United States, 218 US 245, 31 S Ct 2, 54 L ed 1021, to stand up and remove his glasses, Rutherford v. State, 135 Tex Crim 530, 121 SW2d 342, or to reveal tattoo marks on his arm, State v. Ah Chuey, 14 Nev 79, 33 Am Rep 530.

It seems now to be a well accepted fact that handwriting is almost as individualistic and identifying as are fingerprints.

If no constitutional right is denied a lawfully arrested individual in requiring him to do acts which may disclose by comparison that he is the person that committed a crime, we are unable to find a valid reason for holding that a person whose handwriting has been secured for comparison has had his constitutional right to counsel and privilege against self incrimination invaded. People v. Harper, 115 Cal App2d 776, 252 P2d 950; Stanfield v. United States, 350 F2d 518.

The judgment is affirmed.