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65 Cal. 2d 529

People v. Ellis

California Supreme Court

Decided December 23, 1966

California Supreme Court · decided 1966-12-23

Key passage — most relied on by later courts

“The privilege against self-incrimination applies to evidence of “communications or testimony” of the accused, but not to “real or physical” evidence derived from him.... The results of voice identification tests fall within the category of real or physical evidence.... In such a test, the speaker is asked, not to communicate ideas or knowledge of facts, but to engage in the physiological processes necessary to produce a series of articulated sounds, the verbal meanings of which are unimportant.. .. Even though evidence obtained from a voice identification is not within the privilege against self-incrimination, the question remains whether evidence and comment on a refusal to take such a test is admissible. .. . [The rule prohibiting comment on a defendant’s refusal to testify] is not applicable when, as in this case, the defendant has no constitutional right to refuse to speak solely for purposes of voice identification.. . . Nor was defendant’s refusal to “display his voice” itself a testimonial communication. It was circumstantial evidence of consciousness of guilt, and like similar evidence, such as escape from custody . . . false alibi ... flight . . . suppression of evidence .. . and failure to respond to accusatory statements when not in police custody ... its admission does not violate the privilege. ... A guilty party may prefer not to find himself in a situation where consciousness of guilt may be inferred from his conduct, but it can scarcely be contended that the p”

quoted by 1 later decision, including State v. Neville

Relies on Griffin v. California

Good law ✅— No negative treatment on recordhow we know

Decided 1966-12-23

How this case has been cited

Cited by 309 later decisions (3 by the Supreme Court) — most recently May 2021 · most notably South Dakota v. Neville (1983), 2 Cal. 3d 362 - People v. Terry (1970)

18 federal appellate · 285 state decisions — followed in 26 states

10101966197019801990200020102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

MOSK, J.

¶1I dissent. The majority opinion easily persuades me that “voice identification is not within the privilege against self-incrimination,” and that the rule of Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229], is inapplicable when the defendant has no constitutional right to refuse to speak solely for purposes of voice identification.

¶2Our problem ends with the foregoing determination. The adoption of yet another rule for police procedure adds a superfluous burden to what the majority has appropriately called ‘ ‘ a system dedicated to ascertainment of truth. ’ ’

¶3A defendant warned that he has a right to remain silent understands he cannot be compelled to give a statement relating to the offense he is suspected of committing. But certainly he cannot reasonably infer from the mandatory admonition that he may remain mute thereafter for all purposes. He is required to respond when asked his name, address, place of employment, next of kin, name of his attorney, and other relevant biographical information. When he goes to court, he may be asked similar questions, and generally he is expected to personally announce his plea (Pen. Code, §1018). Queries of that type and the vocal response are designed not to effectuate self-incrimination but to achieve an orderly administration of justice.

¶4Of a more substantive nature are other permissible efforts of the state to obtain the facts necessary for ascertainment of the truth, through fingerprinting, photographing, measuring the suspect; imprinting a portion of the suspect’s body; physical *543examination of the body; removal of or placing articles of clothing on the suspect; requiring the suspect to stand, assume a stance, walk, make a particular gesture, to write for identification ; requiring the suspect to appear in a lineup and in court; or listening to his voice. (8 Wigmore, Evidence (McNaughton rev. 1961) pp. 387-399.) Nothing in Griffin suggests the impropriety of commenting on defendant’s refusal to render at least passive cooperation with the foregoing procedures. Indeed, Griffin is limited to prohibiting “comment on the refusal to testify . . . [because it] is a penalty imposed by courts for exercising a constitutional privilege. ’ ’ (P. 614.)

¶5I harbor serious doubts as to the ability of peace officers to devise a comprehensible warning, as required by the majority, that will “distinguish between speech in terms of communication and speech for voice identification, between a refusal to speak free from sanctions and a refusal to speak productive of detrimental inferences.” If this is too subtle a distinction for laymen, it is equally so for those in the field of law enforcement.

¶6Since we found no self-incrimination problem involved here and Griffin is inapplicable, I perceive no bar to affirming the judgment and I worild do so.

¶7McComb, J., concurred.

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