The Case of the Telltale Tattoos:

PEOPLE v. SLAVIN , 1 N.Y.3d 392; 807 N.E.2d 259; 775 N.Y.S.2d 210

Decided February 17, 2004

In September 2000, Christopher Slavin and another man lured two illegal immigrant Mexicans to an abandoned building by offering work.  While there, Slavin attacked the two with a post hole digger and knife.  Both men suffered serious injuries, but survived the attacks. Slavin was tried and found guilty of violating New York State's “Hate Crimes” law, which makes it a crime to threaten or harm another because of the race, color, religion or national origin of such person.

 

            As part of the evidence against Slavin, the prosecution produced photographs of tattoos that Slavin wore on his body.  All the tattoos except one were hidden under Slavin's clothing but during his arrest  the police required their exposure in order to photograph them as evidence of Slavin's hateful motive.   These tattoos included Nazi swastikas, Celtic crosses, skinheads, and Viking figures.  An expert in bias and hate crimes presented testimony at trial as to the customary meaning of these particular tattoos and their connection to certain types of racist attitudes. 

Slavin’s attorney appealed the conviction claiming that the use of photos, taken without his permission and presented at trial, was a violation of the Fifth Amendment privilege against self-incrimination. He claimed that the tattoos disclosed Slavin's "subjective thoughts and beliefs on the issue of race" and were therefore compelled testimony since they were taken forcibly by the police.

 

            The New York State Court of Appeals in a 4-2 decision upheld Slavin’s conviction. The majority found that tattoos were physical evidence that may have reflected Slavin's thought process. It likened the tattoos to preexisting documents that can be obtained from a defendant even if they contain incriminating information about the defendant's beliefs. The Court also compared the tattoos to physical evidence like a blood sample taken from an individual accussed of drunk driving and used at trial to show the presence of alcohol.   It was important to the Court that Slavin created the tattoos of his own accord and so the "testimony" they provided was not compelled although his posing for the photographs was. 

 

The dissenting opinion contended that photographs were taken to prove what Mr. Slavin was thinking at the time he committed these crimes.  It stated that the tattoos were not like preexisting documents because in posing for the photographs, Slavin was put into a position of appearing to affirm the messages they conveyed, which is "an act with independent testimonial significance."   The tattoos were not like physical evidence, which is neither testimonial nor communicative. The tattoos were offered for what they "said" and therefore the privilege against self-incrimination prevents their compelled disclosure.

 

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Learning Activities

 

Terms to Know

 

•                     compelled testimony

•                     hate crime

•                     self incrimination

 

                                                                                                           

Compare and Contrast

 

Read below the excerpts from Miranda v. Arizona (384 U.S. 436 (1966)) that discuss the Fifth Amendment prohibition on compelled testimony then consider the questions that follow.

 

“[T]he constitutional foundation underlying the privilege [against self-incrimination] is the respect  a government – state or federal– must accord to the dignity and integrity of its citizens.  To maintain a fair state-individual balance,  to require the government to shoulder the entire load, ...to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth. ... In sum, the privilege is fulfilled only when the person is guaranteed the right to remain silent unless he chooses to speak in the unfettered exercise of his own will. ...

 

“The question in these cases is whether the privilege is fully applicable during a period of custodial interrogation.  In this Court, the privilege has consistently been accorded a liberal construction....We are satisfied that all the principles embodied in the privilege apply to informal compulsion exerted by law-enforcement officers during in-custody questioning.  An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion ... cannot be other wise than under compulsion to speak....

 

“Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.                We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and compel him to speak where he would not otherwise do so freely.”