Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

State v. Moore, Franklin App. No. 03AP-145, 2003-Ohio-5342 -- Handwriting examiner used the defendant's signatures on seven fingerprint cards as exemplars of his known handwriting. No error since there was no direct reference to the commission of previous crimes. Dubious curative instruction said to obviate need to declare a mistrial.
Gilbert v. California (1967), 388 U.S. 263 -- The Fifth Amendment privilege against self-incrimination does not apply to obtaining a handwriting exemplar for identification purposes. See Schmerber v. California (1967), 384 U.S. 757.
State v. Ostrowski (1972), 30 Ohio St. 2d 34 -- Paragraph one of the syllabus: "A handwriting exemplar, used solely for identification purposes, is a mere identifying physical characteristic and, as such, is outside the scope of the Fifth Amendment privilege against self-incrimination, even if the words written are identical to the words contained in a writing directly linked to the crime; and there is no requirement that Miranda warnings be given prior to the giving of such handwriting exemplar."
State v. Kiser (1968), 13 Ohio St. 2d 126 -- Court finds no Fifth Amendment violation in the use of the defendant's partially inculpatory statement to the police as a handwriting exemplar. Opinion suggests that result might have been different if the statement was construed as "testimonial," and had the case been tried before Miranda, which had been decided between the time of the trial and the time the appeal was decided. See State v. Ostrowski (1972), 30 Ohio St. 2d 34, 37-41.
State v. Flinn (1982), 7 Ohio App. 3d 294 -- Defendant properly held in contempt for refusal, in open court, to furnish handwriting exemplar. Also see Hawk v. Superior Court (1974), 116 Cal. Rptr. 713, 718, cert. denied, 421 U.S. 1012. Also see In re Rosahn (2nd Cir. 1982), 671 F. 2d 690 (grand jury subpoena).
In re Grand Jury Directive to Creager (1993), 89 Ohio App. 3d 672 -- Defendant was properly found in contempt for refusal to provide handwriting exemplar. The privilege against self-incrimination under the Ohio Constitution is identical to that found in the Fifth Amendment.
State v. McCoy (1993), 89 Ohio App. 3d 479 -- To elevate theft to grand theft based on prior theft convictions, the prosecutor sought to prove identity of the defendant as the person previously convicted by introducing a not guilty plea signed by the defendant in the previous case, and a continuance request signed by him from the present case. No expert testimony was offered. Conviction held to be against the manifest weight of the evidence absent expert testimony and additional testimony establishing that the defendant was the person who had signed both documents.

Publishing Information

Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
Contents may not be duplicated without express permission.