Hansen v. Owens , 1980 Utah LEXIS 1053 ( 1980 )

CROCKETT, Chief Justice:

In original proceedings, the petitioner requests this Court to enjoin enforcement of an order of the defendant, Circuit Judge of Washington County, which directs petitioner to furnish examples of his handwriting for use in connection with a charge of forgery against him.

This petition focuses attention upon the meaning and effect to be given to the protective provisions of our state and federal constitutions relating to being required to incriminate one’s self.¹ It is to be noted that the Fifth Amendment to the United States Constitution provides that “[No person] shall be compelled in any criminal case to be a witness against himself, .... ” Whereas, our state provision provides that “The accused shall not be compelled to give evidence against himself.”

On defendant’s behalf, it is urged that the two constitutional provisions, even though not identical in wording, are essentially the same in meaning. From that premise, support is garnered from holdings of the United States Supreme Court that the privilege against self-incrimination does not protect an accused from being the source of real or physical evidence against him.² It is urged that such rulings are applicable in the instant case.

We take cognizance of the fact that federal courts have generally held that the privilege applies only to evidence of a “testimonial” nature; and we do not doubt their soundness as applied to their particular facts. However, it seems significant that the framers of our Utah Constitution, in Section 12 of Article I, stated that “The accused shall not be compelled to give evidence against himself; a wife shall not be compelled to testify against her husband, nor a husband against his wife .... ” (All emphasis herein is added.)

In legal formulations, it is to be assumed that the words used were chosen advisedly.³ This is particularly true in such foundational documents as constitutions, which it can be assumed are framed with greater than usual care and deliberation. Consequently, when terms of clearly different meanings are used within the same framework, each should be given its own separate, commonly understood meaning. Judged in that light, it seems reasonable to assume that the phrase “to give evidence against himself,” as used in our constitution, was intended to mean something different and broader than the phrase “to be a witness against himself” as used in the federal constitution. Such a distinction has heretofore been recognized by this Court.⁴

The significant aspect of this case is made evident by comparison with our case of State v. Van Dam,⁵ cited by the defendant. There it was held not to be error to introduce evidence relating to hair samples obtained from the accused. There was not involved any compulsion or affirmative act by him. This situation is quite different. Here, the accused has made timely objection to being compelled to give evidence, which he asserts may be incriminating. In reference to the cases relied upon by the defendant, we note that this case goes beyond making observations or comparisons of an accused’s appearance, or of his body, or its parts or substances obtained therefrom. We do not mean this decision to be understood as going beyond its particular facts. The order directs the accused to do the affirmative act of writing. Considered under our Utah constitutional provision, we see no controlling distinctions between making him respond to questions for possible use against him relating to an alleged crime, and making him write for that purpose.⁶

We further observe that we are somewhat perplexed by this proceeding because it is hard to believe that exemplars of the petitioner’s handwriting could not be obtained from some other source. Nevertheless, it is our opinion that the order made is violative of the rights assured the petitioner by the provision of our constitution referred to and that it should be vacated. No costs awarded.

MAUGHAN and HALL, JJ., concur.

1 . U.S.Const., Amend. V; Utah Const., Article 1, § 12.

2 . Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); and U.S. v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973).

3 . Grant v. Utah State Land Board, 26 Utah 2d 100, 485 P.2d 1035 (1971); Horman v. Liquor Control Commission, 21 Utah 2d 294, 445 P.2d 4 (1968); and Metropolitan Water District v. Salt Lake City, 14 Utah 2d 171, 380 P.2d 721 (1963).

4 . See Carter v. Cummings-Neilson Co., 34 Utah 315, 97 P. 334 (1908) wherein the court so stated and quoted the language of Chief Justice Bartch in the case of Crooks v. Harmon, 29 Utah 304, 81 P. 95 (1905) wherein he stated:

The word “testimony” is a restricted, limited term, consisting only of the statements of witnesses, while the word “evidence” is a comprehensive term, embracing not only testimony, or the statements of witnesses, but also documents, written instruments, admissions of parties, and whatever may be submitted to a court or a jury to elucidate an issue or prove a case.

Consistent with this is Rule 1(1), Utah Rules of Evidence which states that:

“Evidence,” as used in these rules, includes the means, oral, documentary or physical, used as proof on issues of fact.

5 . Utah, 554 P.2d 1324 (1976); and see also State v. Sirmay, 40 Utah 525, 122 P. 748 (1912) and State v. Mortensen, 26 Utah 312, 73 P. 562 (1903).

6 . We decide as we do herein in awareness of State v. Spencer, 28 Utah 2d 12, 497 P.2d 636 (1972).