State Con Law Case of the Week: Testimonial Feet in Georgia

Anthony Sanders · January 22, 2022

One of the most famous rights of the criminally accused is the right against self-incrimination. The Fifth Amendment guarantees that “No person . . . shall be compelled in any criminal case to be a witness against himself.” “Taking the Fifth” has become synonymous with the right, even though the Fifth Amendment has a number of other important rights within its text, including perhaps the most important of them all, the Due Process of Law Clause. I even once heard someone jokingly “plead the Fifth” in an office conversation . . . in England. The British do have a common law right against self-incrimination, which the Fifth Amendment’s version is derived from, but it sure isn’t called “The Fifth.”

But what are the contours of this right? The U.S. Supreme Court has vacillated on its scope over the centuries. In one of its biggest early criminal procedure cases, Boyd v. United States, the court said it covered an individual’s business papers. The case wasn’t even a criminal prosecution but a customs action, akin to today’s civil forfeiture. More recently, though, it has narrowed the right to mostly just include oral testimony by a defendant. Thus, a defendant cannot be forced to testify at trial, or to answer questions in other situations where the statement may be used to incriminate her.

But the Court has allowed the government to force all kinds of other compulsory behavior that should arguably qualify as “testimonial,” such as breathalyzer tests or blood draws, handwriting samples, or standing in a lineup, determining these to be evidence not testimony.

Down in Georgia that state’s constitution has an equivalent to “The Fifth,” in Paragraph XVI of its Bill of Rights: “No person shall be compelled to give testimony tending in any manner to be self-incriminating.” Perhaps because of the “in any manner” language, perhaps for other reasons, Georgia’s Supreme Court adheres to a broad view of the right, even beyond what the Boyd court said.

This was reaffirmed this week in Awad v. State, a DUI case where the defendant was demanded to give a urine sample. He refused, and, as is the law in many states, that refusal was in itself deemed to be the equivalent of a DUI. The defendant asked that the evidence that he refused to take the test be thrown out under his state constitutional right against self-incrimination.

The Georgia Supreme Court has previously recognized that Paragraph XVI (or previous versions of it in older state constitutions before the current one was adopted in 1983) is broader than the Fifth’s version. In a 2017 case Olevik v. State it explained that “[a] nearly unbroken line of precedent dating back to 1879 leads us to conclude that” it applies to a DUI defendant taking a breathalyzer test. This overruled a 2000 case where the Olevik court determined it had briefly strayed from this tradition. Olevik rested both on the long line of precedent and the original meaning of the equivalent text going back to the Georgia Constitution of 1877. One piece of evidence was the case Day v. State (1879) where a burglary defendant was forced by witnesses to the burglary to put his foot in a footprint outside of the crime scene. This seemed to demonstrate he was one of the burglars. Such an act is, of course, much more like standing in a lineup or giving a handwriting sample than oral testimony. The court, however, stated that someone cannot “by force, compel another, against his consent, to put his foot in a shoe-track for the purpose of using it as evidence against him on the criminal side of the court.”

With this tradition, and the clarification of the tradition in Olevik, it did not take very much for the Awad court to extend the right to a urine sample, seeing no principled difference between it and a breath test or a blood draw. Thus, Georgia’s more expansive understanding of the right continues on, demonstrating, as we’ve noted on this blog many times, that state courts do not have to follow the rulings of a group of nine judges about a completely different document just because those judges are called the U.S. Supreme Court.

Also, Olevik, written by Justice Peterson, has a really interesting discussion of original meaning in a state like Georgia that has readopted its constitution many times over the years.

Anthony Sanders is the director of IJ’s Center for Judicial Engagement.

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