Week Twelve, Part 5 - Crim: Detecting Lies

In Criminal Law, we look at Schmerber v. California, a 1966 Supreme Court case. The issue is whether involuntary tests to determine the blood-alcohol content of a drunk driver violate the Fifth Amendment’s right against self-incrimination. The Court held in a 5-4 vote that the withdrawal of blood is “non-communicative in nature” and thus is not subject to privilege.

Dutile calls on Anthony Wisniewski, a brash East Coaster from the Catholic University in D.C. He’s wearing a long-sleeve t-shirt and jeans.

The questions progress from simple to complex as Dutile explores the gray area between testimonial and physical evidence. From three rows away, I can see the sweat on Wisniewski's forehead. Finally, after a string of "I dunnos," Dutile asks Mr. Wisniewski to opine on the holding.

“Schmerber is BS!” Wisniewski barks.

The class laughs.

Dutile’s eyes widen. “An unhappy choice of words, but go on.”

“If the involuntary drawing of blood isn't forced self-incrimination, what is? There’s no practical difference between giving self-incriminating testimony and providing self-incriminating evidence," Wisniewski says. "The 5th Amendment should cover both.”

Dutile broadens the topic. In most cases, he says, physical evidence is not protected by the Fifth. A suspect may be ordered to give fingerprints or, like O.J., his hair fibers. The Fifth Amendment only protects the defendant from giving testimonial evidence.

Dutile raises the issue of lie detector tests. Since the defendant is answering questions, the answers are clearly testimonial. But the polygraph is also measuring physiological responses.

“Please note,” Dutile says, “that lie detection depends on what the defendant perceives to be true. Suppose Mr. Wisniewski thinks the sun rises in the West, but says ‘the East.’ His blood pressure will go up and the polygraph will detect a lie. There is no ‘reality database’ attached to the polygraph.”

Dutile says lie detection is more accurate than formerly thought and may be recognized in some courts. For the most part, however, polygraph results are inadmissible. This exclusion includes even the physiological responses that the expert observes: pulse rate, temperature, perspiration.

“At first blush you might say, ‘That's physical stuff.’ But if we accept the notion that testimonial means ‘I am affirming something true or false,’ it’s relatively easy to make the case that polygraph tests come within the Fifth.”

Dutile adds, “Now Mr. Wisniewski, that doesn't mean you ought to let your client sit for one with the prosecutor. Even though the results may not be admissible, the answers he gives might be considered testimony.”

The period ends. I deviate from the truth just a bit and tell Anthony he did great. Analogous to Schmerber, the class was an involuntary test to determine the brain-information content of a stressed 1L. The poor guy deserves some praise.

At home later that evening, I put my casebooks away and walk upstairs to tuck little Lauren into bed. She’s just had a bath. Her hair is wet and shiny, dark against the pink pillow.

We say our prayers.

“You look pretty.” I kiss her on the cheek.

Lauren smiles. "You're handsome.”

“Are you telling the truth?” I ask, fishing for another compliment. “I can give you a lie detector test and find out.”

“Well, except for that bald spot." She puts her hand on my forehead.

“Thanks, Honey. We’ll go with your first statement.”

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