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State v. Ramon G. Gonzalez, 2012AP1818, petition for review granted 1/19/14

Review of an unpublished court of appeals opinion; case activity; prior On Point post here.

Issue:

Whether ordering a defendant to open his mouth and reveal his platinum teeth to the jury violated his Fifth Amendment right against self-incrimination?

So, this case may boil down to whether forcing the defendant to show his platinum teeth is any different from forcing him to give fingerprints or a blood sample.  In other words, is showing platinum teeth testimonial evidence or physical evidence?  SCOTUS says the Fifth Amendment doesn’t protect a suspect from being compelled to produce physical evidence.  See Pennsylvania v. Muniz, 496 U.S. 582, 588-89 (1990).  But the idiom “show one’s teeth” (i.e. “to become menacing; reveal one’s hostility”) suggests the evidence at issue here may be testimonial.   No doubt the answer depends upon the circumstances of the case (Gonzalez was convicted of battery to another prisoner) and one’s viewpoint. (Juror:  “Wow, this guy’s chops are really scary.” DA: “These teeth are just physical evidence.”  4 out of 5 dentists: “Hmm.  This guy’s got cavities.”) The initial brief is sure to be “armed to the teeth” with interesting precedent–hopefully enough to persuade 4 out of 7 justices to reverse.  🙂

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