Gilbert v. California (388 U.S. 263)/Concurrence-dissent Fortas

Mr. Justice FORTAS, with whom THE CHIEF JUSTICE joins, concurring in part and dissenting in part.

I concur in the result-the vacation of the judgment of the California Supreme Court and the remand of the case-but I do not believe that it is adequate. I would reverse and remand for a new trial on the additional ground that petitioner was entitled by the Sixth and Fourteenth Amendments to be advised that he had a right to counsel before and in connection with his response to the prosecutor's demand for a handwriting exemplar.

1. The giving of a handwriting exemplar is a 'critical stage' of the proceeding, as my Brother BLACK states. It is a 'critical stage' as much as is a lineup. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. Depending upon circumstances, both may be inoffensive to the Constitution, totally fair to the accused, and entirely reliable for the administration of justice. On the other hand, each may be constitutionally offensive, totally unfair to the accused, and prejudicial to the ascertainment of truth. An accused whose handwriting exemplar is sought needs counsel: Is he to write 'Your money or your life?' Is he to emulate the holdup note by using red ink, brown paper, large letters, etc? Is the demanded handwriting exemplar, in effect, an inculpation-a confession? Cf. the eloquent arguments as to the need for counsel, in the Court's opinion in United States v. Wade, supra.

2. The Court today appears to hold that an accused may be compelled to give a handwriting exemplar. Cf. Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Presumably, he may be punished if he adamantly refuses. unlike blood, handwriting cannot be extracted by a doctor from an accused's veins while the accused is subjected to physical restraint, which Schmerber permits. So presumably, on the basis of the Court's decision, trial courts may hold an accused in contempt and keep him in jail-indefinitely-until he gives a handwriting exemplar.

This decision goes beyond Schmerber. Here the accused, in the absence of any warning that he has a right to counsel, is compelled to cooperate, not merely to submit; to engage in a volitional act, not merely to suffer the inevitable consequences of arrest and state custody; to take affirmative action which may not merely identify him, but tie him directly to the crime. I dissented in Schmerber. For reasons stated in my separate opinion in United States v. Wade, supra, I regard the extension of Schmerber as impermissible.

In Wade, the accused, who is compelled to utter the words used by the criminal in the heat of his act, has at least the comfort of counsel-even if the Court denies that the accused may refuse to speak the words-because the compelled utterance occurs in the course of a lineup. In the present case, the Court deprives him of even this source of comfort and whatever protection counsel's ingenuity could provide in face of the Court's opinion. This is utterly insupportable, in my respectful opinion. This is not like fingerprinting, measuring, photographing-or even blood-taking. It is a process involving the use of discretion. It is capable of abuse. It is in the stream of inculpation. Cross-examination can play only a limited role in offsetting false inference or misleading coincidence from a 'stacked' handwriting exemplar. The Court's reference to the efficacy of cross-examination in this situation is much more of a comfort to an appellate court than a source of solace to the defendant and his counsel.

3. I agree with the Court's condemnation of the lineup identifications here and the consequent in-court identifications, and I join in this part of its opinion. I would also reverse and remand for a new trial because of the use of the handwriting exemplars which were unconstitutionally obtained in the absence of advice to the accused as to the availability of counsel. I could not conclude that the violation of the privilege against self-incrimination implicit in the facts relating to the exemplars was waived in the absence of advice as to counsel. In re Gault, 387 U.S. 1, 38-39, 87 S.Ct. 1428, 1449-1450, 18 L.Ed.2d 527 (1967); Miranda v. State of Arizona, 384 U.S. 436, 8 § .Ct. 1602, 16 L.Ed.2d 694 (1966).