Voice exemplar is not protected by Fifth Amendment


On October 7, 1996, Charles Peters, a confidential police informant, met with Officer Norman Goleman, a narcotics agent for Walthall County, to discuss the purchase of cocaine from Billy Joe Martin. After being equipped with a transmitter, Peters drove to an area frequented by Martin. Shortly thereafter, Martin arrived. At approximately 7:33 p.m., Peters purchased a twenty dollar rock of cocaine from him. Peters then drove back to a designated site where he was met by Officer Goleman. The cocaine and audio tape were then taken and inspected by Officer Goleman. The same process was repeated, with Peters purchasing cocaine from Martin at 8:20 p.m. and 10:26 p.m later that evening.

Martin was convicted of one count of distributing a controlled substance and sentenced to 23 years. On appeal, he argued he was improperly ordered to provide a voice exemplar in court. MCOA affirmed.


SCOTUS held that the taking of exemplars did not violate petitioner’s Fifth Amendment privilege against self-incrimination. The privilege reaches only compulsion of 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, and not compulsion which makes a suspect or accused the source of real or physical evidence. See SCOTUS Gilbert v. California, 388 U.S. 263 (1967).

One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection.

These principles have been adopted in Mississippi. MSC has held that the State could force a defendant to provide a handwriting exemplar without violating the Fifth Amendment or Section 26 of the Mississippi Constitution, which protects against self-incrimination. See McCrory v. State, 342 So.2d 897 (Miss. 1977). The court has further noted that in analyzing the two provisions, this Court has used the term “Fifth Amendment” to refer to the self-incrimination provisions of both the U.S. Constitution and the Mississippi Constitution. Consequently, we find Martin’s argument without merit. Voice exemplars are prohibited by neither the Fifth Amendment nor Section 26 of the Mississippi Constitution.