What Is Nontestimonial Evidence?
By RICHARD MEEHAN
The Cool Justice Report
www.cooljustice.blogspot.com
Sept. 16, 2009
EDITOR'S NOTE: Clark was released about 3 a.m. today. This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com
Recent news video from the Annie Le investigation revealed police escorting Raymond Clark, described as a "person of interest," to an awaiting police vehicle Tuesday night. Despite showing all signs of being in police custody, New Haven's police chief clearly stated, later, that Clark was not under arrest. He was being removed to police headquarters to obtain relevant samples of hair and bodily fluids for testing. If cooperative he was to be released on the completion of the process.
Clark looked every bit the part of someone being arrested-handcuffed and accompanied by a large cadre of police-but he was not. Investigators had applied for a search warrant to seize what is known as nontestimonial evidence from Clark. The term "nontestimonial" simply means that it is physical evidence, as distinguished from a statement from the subject. Since the evidence is not derived from the subject's spoken words it does not implicate his Fifth Amendment rights against self-incrimination. Even if the physical evidence obtained is incriminating the Fifth Amendment only protects against compelling someone to give a statement.
Prior to an arrest, the police must obtain either the consent of the subject or seek judicial authority. The Fourth Amendment protects citizens from warrantless and unreasonable searches and seizures. Obtaining blood or bodily fluids and hair samples are a "search" within the meaning of the Fourth Amendment. Taking the person into custody to obtain the samples is as well a "seizure" under that Amendment. Since most people would refuse to volunteer such samples, a search warrant is needed for the police to "seize" the person and detain him for a reasonable time to collect the items sought. A judicial finding of "probable cause" must support that warrant. Prosecutors also have the right to ask the judge to seal the supporting affidavits and warrant application up to two weeks if revealing those could jeopardize an ongoing investigation.
If a prosecution has already commenced the prosecutor can employ a provision in the Criminal Rules of Practice to make an application to a judge to obtain nontestimonial evidence. In that instance, as well, the application must demonstrate probable cause that the evidence may be of material aid in determining whether the accused committed the crime and cannot practicably be obtained from other sources. In either instance the seizure can involve invasive means such as drawing blood.
The warrant that permitted the "seizure" of Clark provided police an opportunity to seek to interview him while in their custody. There are prescribed rules that govern how police may conduct a custodial interrogation. The warrant in this case would only permit the police to detain Clark for as long as it takes to obtain the samples. An artful criminal lawyer may later argue that there was no reason to detain him and transport him to headquarters as the swabs and samples could as easily have been collected at his home.
If police do question a subject under similar conditions as here, they must give that person the opportunity to leave. If he is not permitted to leave then he is in "custody" irrespective of whether it has been articulated that he is under arrest. The courts have determined that there are no talismanic words that define whether an arrest has occurred; rather, it is the surrounding circumstances that establish that. Once it is determined that there is a custodial situation a suspect's Sixth Amendment rights to counsel attach and the Miranda warnings are a necessity.
The Constitution protects all citizens from investigative detention. That principle has been at the cornerstone of the issues surrounding the detention of suspected terrorists at Guantanamo Bay.
Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. His column also appears in the Sunday Norwich, CT Bulletin. Website, www.meehanlaw.com
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