BOBBY EARL LUSK, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court affirmed the defendant's conviction, holding that a prosecutor's request for the defendant to speak so a witness could identify his voice does not violate the Fifth Amendment privilege against self-incrimination because voice identification is physical, non-testimonial evidence.
A prosecutor's request that a defendant speak for voice identification purposes does not violate the Fifth Amendment privilege against self-incrimination because the privilege does not extend to furnishing physical, non-testimonial evidence such as voice samples.
[1] The Fifth Amendment privilege against self-incrimination does not protect against compelled production of physical, non-testimonial evidence such as voice samples for ide…
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Join FLexlaw to unlock all legal intelligenceThe defendant Lusk was charged with a crime. During trial, while a witness was on the stand, the prosecutor requested that Lusk speak so the witness c…
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SCHWARTZ, Judge.
Rejecting the defendant Lusk’s sole contention on appeal, we hold that the prosecutor’s request that the defendant speak so that a witness then on the stand could identify his voice, was not an improper comment on an exercise of his constitutional right against self-incrimination. Although the request was made while the jury was present, and although Lusk did not himself testify, the cases cited by the defendant, e. g., Gordon v. State, 104 So. 2d 524 (Fla.1958), have utterly no application to this situation. Lusk’s fifth amendment rights were simply not involved at all, because the privilege of “silence” does not extend to nor include the furnishing of physical, non-testimonial evidence such as the revelation of the sound of one’s voice. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Parkin v. State, 238 So. 2d 817 (Fla.1970), cert. denied, 401 U.S. 974, 91 S.Ct. 1189, 28 L.Ed.2d 322 (1971); Joseph v. State, 316 So. 2d 585 (Fla. 4th DCA 1975); Boyer v. State, 182 So. 2d 19 (Fla. 4th DCA 1966), cert. denied, 388 U.S. 913, 87 S.Ct. 2118, 18 L.Ed.2d 1353 (1967); Higgins v. Wainwright, 424 F. 2d 177 (5th Cir. 1970), cert. denied, 400 U.S. 905, 91 S.Ct. 145, 27 L.Ed.2d 142 (1970); Springer v. State, 372 N.E. 2d 466, 472 (Ind.App. 1978); Doye v. State, 16 Md.App. 511, 299 A. 2d 117 (1973).
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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MacIas v. State, 515 So. 2d 206 (Fla. 1987)…f-incrimination. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); Clark v. State, 379 So. 2d 97 (Fla.1979). The same principle applies even when the defendant is required to speak in the presence of the jury. Lusk v. State, 367 So. 2d 1088 (Fla. 3d DCA 1979). Voice exemplars are usually used to assist a witness in determining identification. However, the fifth amendment is no more implicated where, as here, the witness contrasted the qualities of Macias’ voice in court with those he h…
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Courson v. State, 414 So. 2d 207 (Fla. 3d DCA 1982)…dedness (for example, by requesting the court to have the defendant demonstrate this physical characteristic in the jury’s presence)1 without implicating, much less offending, any right of the defendant not to incriminate himself. See Lusk v. State, 367 So. 2d 1088 (Fla.3d DCA 1979) (prosecutor’s request in jury’s presence that the defendant speak so that the witness could identify defendant’s voice approved against self-incrimination claim); Joseph v. State, 316 So. 2d 585 (Fla. 4th DCA 1975) (same, including…
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State v. MacIas, 481 So. 2d 979 (Fla. 4th DCA 1986)…itted). Clark v. State, 379 So. 2d 97 (Fla.1979), cert. denied, 450 U.S. 936, 101 S.Ct. 1402, 67 L.Ed.2d 371 (1981). “[T]he revelation of the sound of one’s voice” is considered to be “physical, non- [*982] testimonial evidence .... ” Lusk v. State, 367 So. 2d 1088, 1089 (Fla. 3d DCA 1979). In the instant case there is no question that the words respondent was compelled to utter in court were used only to ascertain the physical properties of her voice and not for the content of what was said (only her name).…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- United States v. Wade, 388 U.S. 218 (U.S. 1967)
- United States v. Dionisio, 410 U.S. 1 (U.S. 1973)
- Gordon v. State, 104 So. 2d 524 (Fla. 1958)
- Parkin v. State, 238 So. 2d 817 (Fla. 1970)
- Parkin v. Florida, 401 U.S. 974 (U.S. 1971)
- Hester v. Wyche, 401 U.S. 974 (U.S. 1971)
- Higgins v. Louie L. Wainwright, 424 F.2d 177 (5th Cir. 1970)
- Campbell v. Cal. Dep't of Corr., 400 U.S. 905 (U.S. 1970)
- Anderson v. United States, 400 U.S. 905 (U.S. 1970)
- Aiello v. New Jersey, 388 U.S. 913 (U.S. 1967)