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State v. McKenna

Decided: February 3, 1967.


Conklin, J.s.c. (temporarily assigned).


Defendants have been indicted by the Essex County grand jury for extortion, conspiracy, neglect of official duties and official misconduct. In addition, defendants Kerr and Serra have been indicted for false swearing. Prior to trial the prosecutor's office of Essex County moved for a court order to compel defendant McKenna to submit to a tape recording of his voice. The purpose of obtaining this tape recording is to produce a voice graph from the voice pattern of defendant McKenna in order to compare this graph with one prepared from a recording already in possession of the prosecutor's office.

Initially, it must be understood that the requested recording will be words concerning any subject defendant wishes to speak upon, and shall in no way be related to the indictments now facing him. It must also remain clear throughout this opinion that this court is in no way passing upon the admissibility into evidence of the tape recording currently held by the prosecutor's office. Rather, the question here is whether directing a defendant in a criminal proceeding to submit to a tape recording of his voice for the purpose of comparison in any way violates the constitutional protections of the Federal or State Constitutions.

This is a case of novel impression in this State, although the underlying principles can be said to have been founded in a long series of cases collected in State v. King, 44 N.J. 346 (1965). The oral argument centered primarily on the privilege against self-incrimination embodied in the Fifth Amendment to United States Constitution. The Fifth Amendment is now made applicable to the states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2 d 653 (1964). On June 20, 1966,

the United States Supreme Court rendered its opinion in Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2 d 908 (1966). In that case the court was squarely faced with the question of whether the extraction of blood for analysis in a case involving operation of a motor vehicle while under the influence of intoxicating liquors violates the privilege against self-incrimination. In a 5-4 decision the court found that it did not.

There is a close analogy between the issues there involved and the question we are asked to decide today. It has long since been established that there are certain tests and examinations which are not violative of the privilege encompassed in the Fifth Amendment, and among these are the taking of fingerprints, photographing, physical examination for identifying characteristics, and voice identification tests. State v. King, supra; State v. Alexander, 7 N.J. 585 (1951); Bartletta v. McFeeley, 107 N.J. Eq. 141 (Ch. 1930), affirmed 109 N.J. Eq. 241 (E. & A. 1931), and State v. Cerciello, 86 N.J.L. 309 (E. & A. 1914). While voice identification tests have been sanctioned, these tests were conducted by the simple method of compelling a defendant to speak while within hearing distance of the victim or a witness to the crime, and having either the witness or the victim indicate that this was indeed the voice he heard at the time of the alleged crime.

Today we take another step which, while aiding the prosecutor in the performance of his duty, shall also add another weapon to the arsenal of those falsely accused of criminal conduct. For if the voice graph does not clearly indicate that the incriminating recording does indeed contain defendant's voice, there is little chance that he could be convicted because of that recording. Indeed, he may be entirely vindicated.

Turning to the substantive question of the Fifth Amendment, it is clear that the scope of the privilege is not coterminous with the complex and intertwined values it seeks to protect. Rather, as the Supreme Court held in Schmerber:

"* * * the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature. * * *" (at p. 1830)

Because of the importance of the above passage and the varying connotations given to the words "testimonial" and "communicative," the Supreme Court inserted a footnote, which, because of the light it adds to the subject now before us, is here included.

"A dissent suggests that the report of the blood test was 'testimonial' or 'communicative,' because the test was performed in order to obtain the testimony of others, communicating to the jury facts about petitioner's condition. Of course, all evidence received in court is 'testimonial' or 'communicative' if these words are thus used. But the Fifth Amendment relates only to acts on the part of the person to whom the privilege applies, and we use these words subject to the same limitations. A nod or head-shake is as much a 'testimonial' or 'communicative' act in this sense as are spoken words. But the terms as we use them do not apply to evidence of acts ...

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