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• Introduction
• Documents
• Real Evidence
• The Commission’s Proposals
• Conclusions

8 Documentary and Real Evidence

INTRODUCTION

192 IN NEW ZEALAND, the privilege can be claimed in response to questioning and demands for the production of documents, pre-existing or created at the time of the demand.[41] For example, see Taranaki Co-operative Dairy Co Ltd v Rowe [1970] NZLR 895, 901, where the Court of Appeal held that the privilege could be claimed in response to an order for discovery.

193 The privilege does not appear to apply to real evidence admitted as an object or exhibit (eg, a handwriting sample, weapon, body sample) rather than as an evidentiary statement, although the act of producing documents or other things may constitute a statement in some cases (eg, when it clarifies the existence, possessor or accuracy, of evidence). In New Zealand Apple and Pear Marketing Board v Master & Sons Ltd [1986] 1 NZLR 191, 194–195, the Court of Appeal commented to this effect.[42] Nor can the privilege be claimed in response to a search warrant, because there is no testimonial act of production on the part of the person giving the information when documents or objects are seized by another person.

194 The limitation of the privilege to testimonial statements and production is a reflection of the testimonial disclosure rule. As already noted in chapter 1, Cross describes testimonial disclosure as “the assertion of a human being offered as proof of the truth of which is asserted”.[43] In Sorby v Commonwealth (1983) 46 ALR 237, 244, Gibbs CJ explained the limits in scope of the testimonial disclosure rule:

The privilege prohibits the compulsion of the witness to give testimony, but it does not prohibit the giving of evidence, against the will of the witness, as to the condition of his body. For example, the witness may be required to provide a fingerprint, or to show his face or some other part of his body so that he may be identified, or to speak or to write so that the jury or another witness may hear his voice or compare his handwriting. That this was the significance of the distinction between “testimonial” and other disclosures was recognised in R v McLellan, where it was held that the protection afforded by the rule against self-incrimination did not extend to entitle a person who had been arrested to refuse to furnish a sample of his breath for analysis when required to do so.

195 In this chapter, whether the privilege should be able to be claimed for documents, real evidence, or non-verbal assertions is considered. The main issues in the area are traversed by focusing on the United States case law, which first recognised and then restricted the Fifth Amendment’s application to documents. The Commission’s proposals will follow.

DOCUMENTS

196 The United States case law has developed a set of rules for determining the circumstances in which the privilege will apply to documents and real evidence, in the absence of legislation in a particular context. Traditionally, the application of the privilege to documents has reflected the belief that an individual’s private papers are an extension of that person’s mind and thoughts (Boyd v United States 116 US 616, 627–30 (1886)). That case concerned a subpoena requiring the defendant to produce his books, invoices, and papers for the enforcement of customs law. The court said:

[W]e are unable to perceive that the seizure of a man’s private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself. (633)

197 In Shapiro v United States 335 US 1 (1948), the Supreme Court said that the Fifth Amendment protection did not extend to records which were required to be kept for official governmental purposes (the required records rule). The privilege did not apply because Shapiro was required to keep the records and they were unprotected public documents rather than protected private papers (352–353).[44]

198 The court in Andresen v Maryland 427 US 463 (1976) overruled Boyd, holding that the Fifth Amendment only protects witnesses against compulsion to make a testimonial disclosure and that in Boyd and Andresen there had been no compulsion at the time the defendant recorded his testimonial statements. At the time the defendants expressed their thoughts on paper, they were not being compelled: see also Fisher v United States 425 US 391, 402–414 (1976).

REAL EVIDENCE

199 As in New Zealand, the privilege cannot be claimed in the United States for real evidence produced as an object rather than as a statement (Schmerber v California 384 US 757 (1966)). In that case, the defendant was arrested at a hospital while being treated for injuries from a car accident. The police officer directed a doctor at the hospital to take a blood sample, and an analysis of the alcohol percentage showed that the defendant was intoxicated. The analysis report was introduced at trial, and the defendant was convicted of driving under the influence of alcohol. The majority said that the Fifth Amendment was limited to communicative acts on the part of the person to whom the privilege applies (Justice Brennan, 761). The court remained open to the possibility that physical evidence obtained from the body of a suspect may in some circumstances contain a sufficiently testimonial content to enable the privilege to apply:

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”. (764)

200 The minority of four judges in Schmerber criticised undue reliance on the testimonial disclosure rule, commenting that the words “testimonial” and “communicative” are not models of clarity and precision, and Justice Black said:

In the first place it seems to me that the compulsory extraction of petitioner’s blood for analysis so that the person who analyzed it could give evidence to convict him had both a “testimonial” and a “communicative nature”. The sole purpose of this project which proved to be so successful was to obtain “testimony” from some person to prove that the petitioner had alcohol in his blood at the time he was arrested. And the purpose of the project was certainly “communicative” in that the analysis of the blood was to supply information to enable a witness to communicate to the court and jury that the petitioner was more or less drunk. (774)

201 The United States authorities show the range of evidence which is beyond the shelter of the Fifth Amendment because of the testimonial disclosure rule. This includes standing in a lineup, re-enacting a crime, shaving a beard or moustache, trying on clothing, dyeing hair, demonstrating speech characteristics, furnishing handwriting samples, fingerprints, blood-alcohol and breathalyser evidence and urine tests.

202 As in the New Zealand Apple and Pear Marketing Board case, the United States courts have recognised that the act of producing documents or real evidence, rather than having them seized, might have a communicative aspect of its own in some cases. In Fisher, for example, the court said that production of documents might conceivably indicate the tax-payer’s belief that the documents produced were those described in the subpoena. In Doe v United States 487 US 201, 209 (1988), the court confirmed that the privilege applied in cases in which the act of producing the evidence would testify to the existence, possession, or authenticity of the things produced.

THE COMMISSION’S PROPOSALS

Pre-existing documents and real evidence

203 The Commission is of the preliminary view that the privilege should not apply to pre-existing documents or real evidence in existence at the time their possessor is asked to produce them, for a number of reasons:

• As has already been observed in this chapter and in chapter 2, the fact that there is no compulsion at the point when the information is created means that the likelihood of the compulsion causing the evidence to be unreliable, or for the information to be created from abuses of power, is minimal.
• Innocent people need not fear that they will speak rashly or ill-advisedly, as the document containing, or thing comprising, the relevant information is already in existence.
• Although testing and analysis methods may on occasion be called into question, pre-existing evidence is generally less likely to be unreliable than, for example, confession evidence. Therefore, the rationale behind the privilege of preventing the compelled disclosure of unreliable evidence does not so readily apply.
• While privacy concerns are relevant to pre-existing evidence, particularly personal diaries, we suggest that they should not prevail over the concern to obtain all relevant evidence. They do not currently prevail in relation to such evidence seized pursuant to a search warrant.
• In relation to pre-existing evidence, the concern behind the privilege of maintaining a fair State-individual balance may be adequately addressed by the prohibition on unreasonable search and seizure in s 21 of the New Zealand Bill of Rights Act 1990.

Newly created documents and real evidence

204 In the Commission’s view, the position is different for documents or video or audio tapes newly created in response to a demand for them (eg, in a police station where a suspect writes a confession or makes a confession which is recorded onto a tape).[45] The risk of unreliable admissions being made, abuses occurring, and innocent individuals being compromised and overborne, is similar to that arising from oral statements. The compulsion to give information is imposed more or less contemporaneously with the actual giving of the information: see chapter 2 for more detailed discussion of why the privilege is most useful in investigative contexts.

205 It is not envisaged that the current law concerning such things as finger-prints, body samples etc should be changed. The privilege should not be claimable as a means of refusing to produce such evidence. This is primarily because of the comparative reliability of the other evidence, the absence of a communicative aspect coming from the person supplying the evidence and, pragmatically, the importance of such evidence as a means of detecting offenders.

Non-verbal assertations

206 As already observed, in limited circumstances, the New Zealand Court of Appeal has been prepared to conceive of the privilege applying to a communicative aspect in the act of producing documents or objects (eg, where possession constitutes an offence). Our preliminary view is that the provisions in the Evidence Code concerning the privilege should not close off this avenue. It appears artificial for the law to make distinctions between, for example, telling the police where the body is, producing the body, or showing where it is. Claims of privilege should be able to be made more broadly for non-verbal self-incriminating assertions which may constitute a self-incriminating acknowledgment that the person has committed a crime. However, the Commission particularly welcomes submissions in this difficult area.

CONCLUSIONS

• The Evidence Code should limit the privilege’s application to oral statements, statements contained in newly created documents (including audio and video tapes) in response to a demand for their creation, and to non-verbal action intended as an assertion.
• The privilege should not be claimable for pre-existing documents or real evidence or in response to a requirement that a person give fingerprint, body sample etc, evidence.
• In relation to pre-existing evidence, privacy interests should not prevail over the concern to obtain all relevant evidence. Such interests do not currently prevail in relation to evidence seized pursuant to a search warrant.
• In relation to pre-existing evidence, the concern behind the privilege of maintaining a fair State-individual balance may be adequately addressed by the prohibition on unreasonable search and seizure in s 21 of the New Zealand Bill of Rights Act 1990.
• There is generally no communicative aspect in producing pre-existing evidence. However, when there is a communicative aspect to an action (eg, when the act of production is itself an acknowledgement that an offence has been committed), the privilege should be claimable. This is the Commission’s preliminary view, and it invites submissions on this difficult area.
• The privilege should be available in response to demands for documents to be created (eg, in a police station where a suspect writes a confession), because the risk of unreliable admissions being made and abuses occurring is similar to that arising in relation to oral statements.