Virginia’s legislature passed a law this week that allows the state to take a DNA sample from anyone arrested for a violent felony. If the Fifth Amendment protects us from self-incrimination, how can people be forced into providing evidence such as DNA samples or bodily fluids against their will?
The Self-Incrimination Clause of the Fifth Amendment reads that no “person … shall be compelled in any criminal case to be a witness against himself.” But the courts have long interpreted this narrowly to mean that the Fifth Amendment protects suspects only from being forced to produce “testimonial or communicative” evidence. The Fifth Amendment does not protect suspects from being compelled to produce “real or physical evidence.” As Oliver Wendell Holmes once wrote, “the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.”
This distinction between “testimonial or communicative” evidence and “non-testimonial” (real or physical) evidence means that the Fifth Amendment does not protect you from being forced to submit to such things as fingerprinting, photographing, measurements, blood samples, or DNA evidence. Nor does it protect you against standing in a lineup or demonstrating your walk.
The Fifth Amendment doesn’t even mean that you can’t be forced to speak. The Supreme Court has held that the state can force suspects to speak if it’s for the purpose of identifying the physical properties of their voice and not for providing testimony.
Explainer thanks Slate reader Clint Hennecy for asking the question.