# Schmerber v. California/Dissent Warren

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United States Supreme Court
384 U.S. 757
Schmerber v. California
Argued: April 25, 1966. --- Decided: June 20, 1966
Mr. Chief Justice WARREN, dissenting.
While there are other important constitutional issues in this case, I believe it is sufficient for me to reiterate my dissenting opinion in Breithaupt v. Abram, 352 U.S. 432, 440, 77 S.Ct. 408, 412, as the basis on which to reverse this conviction.
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 as 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.
In the first place it seems to me that the compulsory extraction of petitioner's blood for analysis so that the person who analyzed it could give evidence to convict him had both a 'testimonial' and a 'communicative nature.' The sole purpose of this project which proved to be successful was to obtain 'testimony' from some person to prove that petitioner had alcohol in his blood at the time he was arrested. And the purpose of the project was certainly 'communicative' in that the analysis of the blood was to supply information to enable a witness to communicate to the court and jury that petitioner was more or less drunk.
I think it unfortunate that the Court rests so heavily for its very restrictive reading of the Fifth Amendment's privilege against self-incrimination on the words 'testimonial' and 'communicative.' These words are not models of clarity and precision as the Court's rather labored explication shows. Nor can the Court, so far as I know, find precedent in the former opinions of this Court for using these particular words to limit the scope of the Fifth Amendment's protection. There is a scholarly precedent, however, in the late Professor Wigmore's learned treatise on evidence. He used 'testimonial' which, according to the latest edition of his treatise revised by McNaughton, means 'communicative' (8 Wigmore, Evidence § 2263 (McNaughton rev. 1961), p. 378), as a key word in his vigorous and extensive campaign designed to keep the privilege against self-incrimination 'within limits the strictest possible.' 8 Wigmore, Evidence § 2251 (3d ed. 1940), p. 318. Though my admiration for Professor Wigmore's scholarship is great, I regret to see the word he used to narrow the Fifth Amendment's protection play such a major part in any of this Court's opinions.
I am happy that the Court itself refuses to follow Professor Wigmore's implication that the Fifth Amendment goes no further than to bar the use of forced self-incriminating statements coming from a 'person's own lips.' It concedes, as it must so long as Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, stands, that the Fifth Amendment bars a State from compelling a person to produce papers he has that might tend to incriminate him. It is a strange hierarchy of values that allows the State to extract a human being's blood to convict him of a crime because of the blood's content but proscribes compelled production of his lifeless papers. Certainly there could be few papers that would have any more 'testimonial' value to convict a man of drunken driving than would an analysis of the alcoholic content of a human being's blood introduced in evidence at a trial for driving while under the influence of alcohol. In such a situation blood, of course, is not oral testimony given by an accused but it can certainly 'communicate' to a court and jury the fact of guilt.
The Court itself, at page 764, expresses its own doubts, if not fears, of its own shadowy distinction between compelling 'physical evidence' like blood which it holds does not amount to compelled self-incrimination, and 'eliciting responses which are essentially testimonial.' And in explanation of its fears the Court goes on to warn that
'To compel a person to submit to testing (by lie detectors for example) in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment. Such situations call to mind the principle that the protection of the privilege 'is as broad as the mischief against which it seeks to guard.' Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198 (35 L.Ed. 1110).'
A basic error in the Court's holding and opinion is its failure to give the Fifth Amendment's protection against compulsory self-incrimination the broad and liberal construction that Counselman and other opinions of this Court have declared it ought to have.
The liberal construction given the Bill of Rights' guarantee in Boyd v. United States, supra, which Professor Wigmore criticized severely, see 8 Wigmore, Evidence, § 2264 (3d ed. 1940), pp. 366-373, makes that one among the greatest constitutional decisions of this Court. In that case, 116 U.S. at 634-635, 6 S.Ct. at 534, all the members of the Court decided that civil suits for penalties and forfeitures incurred for commission of offenses against the law,
'* * * are within the reason of criminal proceedings for all the purposes of * * * that portion of the fifth amendment which declares that no person shall be compelled in any criminal case to be a witness against himself; * * * within the meaning of the fifth amendment to the constitution * * *.'
Obviously the Court's interpretation was not completely supported by the literal language of the Fifth Amendment. Recognizing this, the Court announced a rule of constitutional interpretation that has been generally followed ever since, particularly in judicial construction of Bill of Rights guarantees:
'A close and literal construction (of constitutional provisions for the security of persons and property) deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.' Boyd v. United States, supra, at 635, 6 S.Ct. at 535.
The Court went on to say, at 637, 6 S.Ct. at 536, that to require 'an owner to produce his private books and papers, in order to prove his breach of the laws, and thus to establish the forfeiture of his property, is surely compelling him to furnish evidence against himself.' The Court today departs from the teachings of Boyd. Petitioner Schmerber has undoubtedly been compelled to give his blood 'to furnish evidence against himself,' yet the Court holds that this is not forbidden by the Fifth Amendment. With all deference I must say that the Court here gives the Bill of Rights' safeguard against compulsory self-incrimination a construction that would generally be considered too narrow and technical even in the interpretation of an ordinary commercial contract.
The Court apparently, for a reason I cannot understand, finds some comfort for its narrow construction of the Fifth Amendment in this Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. I find nothing whatever in the majority opinion in that case which either directly or indirectly supports the holding in this case. In fact I think the interpretive constitutional philosophy used in Miranda, unlike that used in this case, gives the Fifth Amendment's prohibition against compelled self-incrimination a broad and liberal construction in line with the wholesome admonitions in the Boyd case. The closing sentence in the Fifth Amendment section of the Court's opinion in the present case is enough by itself, I think, to expose the unsoundness of what the Court here holds. That sentence reads:
'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 privilege grounds.' How can it reasonably be doubted that the blood test evidence was not in all respects the actual equivalent of 'testimony' taken from petitioner when the result of the test was offered as testimony, was considered by the jury as testimony, and the jury's verdict of guilt rests in part on that testimony? The refined, subtle reasoning and balancing process used here to narrow the scope of the Bill of Rights' safeguard against self-incrimination provides a handy instrument for further narrowing of that constitutional protection, as well as others, in the future. Believing with the Framers that these constitutional safeguards broadly construed by independent tribunals of justice provide our best hope for keeping our people free from governmental oppression, I deeply regret the Court's holding. For the foregoing reasons as well as those set out in concurring opinions of Black and Douglas, JJ., in Rochin v. People of California, 342 U.S. 165, 174, 177, 72 S.Ct. 205, 210, 212, 96 L.Ed. 183, and my concurring opinion in Mapp v. Ohio, 367 U.S. 643, 661, 81 S.Ct. 1684, 1694, 6 L.Ed.2d 1081, and the dissenting opinions in Breithaupt v. Abram, 352 U.S. 432, 440, 442, 77 S.Ct. 408, 412, 413, 1 L.Ed.2d 448, I dissent from the Court's holding and opinion in this case.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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