The United States Constitution provides our citizens with a privilege against self-incrimination under its Fifth Amendment and, under the Sixth Amendment, with a right to counsel when charged with crime. In the present case, Edward Nece was charged, among other things, with driving while intoxicated. He was arrested and taken to the police station where he was videotaped while walking and otherwise moving about. He was not given any Miranda warnings and his request for counsel was refused. His motion to exclude the videotape from evidence in the municipal court was denied. He appeals from that denial on constitutional grounds.
The Fifth Amendment provides: "No person . . . shall be compelled in any criminal case to be a witness against himself. . . ." In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the Court laid down rules designed to enforce this guaranty. Those rules prohibit prosecutorial use of any statements obtained from a defendant "taken into custody or otherwise deprived of his freedom of action in any significant way," unless:
Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. [at 444, 86 S. Ct. at 1612]
Until 1984 it was the law in New Jersey that the Miranda rules were not applicable to motor vehicle violations. State v. Macuk, 57 N.J. 1, 16 (1970). That rule was abrogated by Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984), in which the Court said:
We hold, therefore, that a person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspected or for which he was arrested. [at 104 S. Ct. 3148; footnote omitted]
In the present case, defendant was videotaped while in custody without receiving the benefit of the Miranda warnings. If the videotape constitutes evidence which is testimonial, the Fifth Amendment was violated. Otherwise, it was not.
Shortly after Miranda, the United States Supreme Court decided Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). That case involved drunk driving and a Fifth Amendment objection to the introduction into evidence of blood test results. Blood had been drawn from defendant over his objection. The Court held that the Fifth Amendment privilege did not apply. It said:
It is clear that the protection of the privilege reaches an accused's communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers. Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746. On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling "communications" or "testimony," but that compulsion which makes a suspect or accused the source of "real or physical evidence" does not violate it.
Although we agree that this distinction is a helpful framework for analysis, we are not to be understood to agree with past applications in all instances. There will be many cases in which such a distinction is not readily drawn. Some tests seemingly directed to obtain "physical evidence," for example, lie detector tests measuring changes in body function during interrogation, may actually be directed to eliciting responses which are essentially testimonial. To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment. Such situations call to mind the principle that the protection of the privilege "is as broad as the mischief against which it seeks to guard." Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S. Ct. 195, 198 [35 L. Ed. 1110], [at 384 U.S. 763-764, 86 S. Ct. 1831-1832]
New Jersey followed Schmerber in State v. Macuk. The issue there was whether Miranda warnings were required before a drunkometer test could be administered. In denying the right to such warnings, the court said, citing Schmerber:
There is a clear legal right to require a motor vehicle operator arrested on probable cause for driving "under the influence" or "while impaired," to submit
to a chemical test for bodily substances to determine the amount of alcohol in his blood, or, for that matter, to a physical coordination test. . . . Since such tests, properly undertaken, violate no constitutional safeguard and are permissible as in any other non-testimonial situation and since our statute no longer requires consent in any situation, acquiescence is not legally significant or necessary. [57 N.J. at 14-15]
The reference to "a physical coordination test" was dicta. That issue was addressed, though briefly, in State v. Vega, 200 N.J. Super. 448 (Law Div.1984), which involved defendant's arrest, breathalyzer testing and videotaping without benefit of Miranda warnings. The principal issue addressed by the court was whether Berkemer should be applied retroactively. It held that it should not, but also noted:
Likewise, the nonverbal conduct which defendant was required to engage in, i.e., various psycho-physical tests, would not be subject to suppression as they were also nontestimonial in nature. Macuk, supra, 57 N.J. at 14 [at 454]
No other New Jersey court has addressed the videotape question and it has not been raised in the United States Supreme Court.
The latter Court has decided that several types of evidence are nontestimonial: voice exemplar, United States v. Dionisio, 410 U.S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973); handwriting exemplars, Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967); a compelled statement in a line-up repeating words uttered by a robber-defendant, United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); putting on a blouse for identification purposes, Holt v. United States, 218 U.S. 245, 31 S. Ct. 2, 54 L. Ed. 1021 (1910). In Dionisio, the Court said:
It has long been held that the compelled display of identifiable physical characteristics infringes no interest protected by the privilege against compulsory ...