This is a motion, brought by the State, to compel defendant to submit a handwriting exemplar in connection with his prosecution for armed robbery, after defendant refused to submit one voluntarily.
The facts are that an armed robbery was committed, during the course of which a note was handed to the victim with the following words handprinted thereon: "THIS IS A HOLD UP, PUT ALL MONEY IN PAPER BAG." A subsequent investigation resulted in the arrest and charging of four subjects, one of whom is defendant. The State alleges that its investigations indicate that defendant is the
person who presented the holdup note. The requested specimen is sought so that it may be compared with the holdup note in an effort to ascertain who prepared it.
In support of its motion the State relies on N.J.S.A. 2A:84A-19(a) which establishes exceptions to the general privilege against self-incrimination. The defense argues that while the State may have a right to obtain a sample of the defendant's handwriting executed prior to the alleged crime through the discovery process, R. 3:13, there is no authority to compel him presently to execute a sample, because to do so would violate his privilege against self-incrimination.
There is no need to explore the background of the privilege against self-incrimination except to say that it is firmly rooted in the State's common law, State v. DeCola , 33 N.J. 335 (1960); In re Pillo , 11 N.J. 8 (1952); its statutory enactments, N.J.S.A. 2A:84A-19; Evidence Rule 25, and the extension of the Fifth Amendment protections to the states, Malloy v. Hogan , 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964).
The privilege, however, does not confer upon the accused an absolute right to refuse any and all cooperation with the judicial process. It is only, to quote Mr. Justice Holmes, "a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material." Holt v. United States , 218 U.S. 245, 252-253, 31 S. Ct. 2, 6, 54 L. Ed. 1021, 1030 (1910)*fn1
The New Jersey statute granting the privilege against self-incrimination also contains this clear exception:
[N]o person has the privilege to refuse to submit to examination for the purpose of discovering or recording his corporal features and other identifying characteristics * * *. [ N.J.S.A. 2A:84A-19(a); Evidence Rule 25(a)]
The United States Supreme Court has delineated the extent of the Fifth Amendment's privilege. The court in Schmerber v. California , 384 U.S. 757, 763-764, 86 S. Ct. 1826, 1833, 16 L. Ed. 2d 908, 913 (1966), held that:
the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a ...