Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

Gilbert v. California, 388 U.S. 263 (1967).

This case answers the following questions:

  1. Can the State force an accused to give a handwriting sample and use it as evidence against the accused at trial?

  2. Is the State required to provide an attorney for me before I give a handwriting exemplar?

  3. May the State use a handwriting exemplar gathered for investigation of crime at a trial for an unrelated charged crime?

The issues in this case include: whether the taking of handwriting exemplars could constitute a violation of an individual’s Fifth Amendment privilege against self-incrimination, and whether the taking of the handwriting exemplars was during a “critical” stage of the criminal proceedings entitling the individual to the assistance of counsel. Id. at 266. The privilege against self-incrimination extends only to compulsion of “an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications.” Id. The Court previously held in United States v. Wade that, “[a] mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. Id. at 266-67.

When contending with the issue of a possible Fifth Amendment violation through the taking of a handwriting exemplar, it is useful to note the background facts of the current case. The defendant was arrested by an FBI agent in regards to an armed robbery that resulted in the murder of a responding police officer. Id. at 265. During this line of questioning, the defendant refused to answer any questions about this specific incident without the advice of counsel. Id. at 265-66. A fellow FBI agent then questioned the defendant about another line of robberies that occurred in Philadelphia where the robber used a handwritten note to demand money. Id. at 266. The defendant proceeded to give handwritten exemplars to the agent in regards to the robberies in Philadelphia. Id. The handwriting exemplars were then admitted into evidence during the trial for the armed robbery and felony murder charges that the defendant was originally arrested under. Id. The Court stated that handwriting is a means of communication, however, the rule does not entail that every compulsion of an accused via voice or writing compels protection under the Fifth Amendment privilege. Id. The Court relied on their previous ruling in Wade, and thus concluded that the defendant’s handwriting exemplars fell outside of the protection of the Fifth Amendment privilege against self-incrimination. Id.

The second issue presented in this case involved whether the taking of the handwriting exemplars occurred at a critical stage of the criminal proceedings, and thus entitled the petitioner to the assistance of counsel. Id. at 267. The Court again noted its ruling in Wade finding that, excluding the fact that the “exemplars were taken before indictment and appointment of counsel, there is minimal risk that the absence of counsel might derogate from his right to a fair trial.” Id. Further, the Court stated that even if an unrepresentative exemplar is taken, it can be brought out and corrected through the adversary process because the accused may make “an unlimited number of additional exemplars for analysis and comparison by government and defense handwriting experts.” Id. The Court thus concluded that the taking of the handwriting exemplars was not a critical stage of the criminal proceeding and reasoned, again through its decision in Wade, that the defendant still has the opportunity to confront the State’s case at trial through the ordinary process of cross-examination of the State’s expert handwriting witness and the presentation of his own evidence. Id.