Vanderbilt Law Review

First Page



The problems involved in defining the nature of the privilege against self-incrimination and in setting its limits have been much mooted in recent years. Though these problems have been brought into sharp focus by the present very urgent and certainly justified concern for our national security, they are problems which are inherent in the privilege itself. They have been with us for a long time.

One of these problems concerns the extent to which a person may refuse to participate in criminal proceedings brought against him. Doubtless not even the most liberal proponent of the privilege would claim that an accused person should be permitted to wear a mask in court and refuse to reveal his face to prosecution witnesses seeking to make an identification. Common sense rebels at the idea. On the other hand, compelling the accused to take the stand and answer under oath questions concerning the crime of which he is charged or ordering him to produce a personal diary in which he has entered incriminating matter--these are clearly violations of the privilege. It is between these polar cases that there lie the situations which have given our courts great difficulty. The same questions have, in different jurisdictions, been given different and irreconcilable answers. Can a person be made to try on clothing or to expose identifying body markings? Is it permissible to compel an accused to submit to a blood test to determine blood-alcohol content, or to submit to a physical or mental examination? Can he be compelled to make fingerprint and footprint impressions? These are only a few of the many possible cases.

It is the purpose of this article, first to examine two situations which are still open questions in almost every United States jurisdiction and which seem to fall almost exactly on the borderline between compelled conduct which violates the privilege against self-incrimination and that which does not.