People v. Slavin, 2004 N.Y. Int. 0011 (Feb. 17, 2004).
CRIMINAL PROCEDURE - EVIDENCE - FIFTH AMENDMENT - SELF INCRIMINATION
ISSUE & DISPOSITION
Issue(s)
Whether a defendant’s Fifth Amendment privilege against self incrimination was violated by the introduction of photographs of the defendant’s tattoos, taken over the defendant’s objection, as evidence of motive for committing a hate crime.Disposition
No. Photographs of tattoos that the police were aware of before compelling the defendant to pose for the photographs are admissible as evidence of the defendant’s physical characteristics.SUMMARY
Defendant was arrested for the beating of two Mexican individuals in a suspected hate crime. Defendant’s lawyer advised the police that Defendant would not give any statements or "voluntary exemplars." Over Defendant’s objections, the police took photographs of tattoos on Defendant’s upper body. The tattoos included pictures of Nazi swastikas and skinheads engaged in various acts of violence. Defendant moved to preclude the use of the photographs at trial, claiming that they violated his Fourth, Fifth, and Sixth Amendment rights. The trial court denied Defendant’s claims and allowed the prosecution to present the photographs along with a witness qualified as an expert in hate crimes. The trial court limited the expert’s testimony to explaining the "customary meaning" of Defendant’s tattoos. A jury convicted Defendant on various counts and the Appellate Division upheld the conviction. The Court of Appeals affirmed.
The Court held that the introduction of the photos of Defendant’s tattoos did not violate Defendant’s Fifth Amendment privilege against self-incrimination. The Court found that the privilege protects against compelled communication, not physical evidence from one’s body or evidence of communication that was already made. The Court explained that the tattoos were merely physical characteristics of Defendant and the privilege does not "preclude a criminal defendant from being required to exhibit physical characteristics or to provide physical exemplars." See People v. Berg, 92 N.Y.2d 701, 704 (1999); Schmerber v. California, 384 U.S. 757, 764 (1966). To the extent the tattoos could be considered a communication, the Court analogized them to preexisting documents, which are admissible even if they may betray "incriminating assertions of facts or belief." United States v. Hubbell, 530 U.S. 27, 35 (2000). Nor did the act-of-production doctrine apply, the Court concluded, because that doctrine only protects the communicative aspects of production that reveal the documents exist and are in the defendant’s possession and control. See Fisher v. United States, 425 U.S. 391 (1976). Here, the police were already aware of Defendant’s tattoos from previous investigation and Defendant was not required to disclose their existence. Thus, the Court upheld Defendant’s conviction.
Prepared by the liibulletin-ny editorial board.