Application of Mackell

Court Discusses Whether the District Attorney was Permitted to Request that the Defendant Shave for a Line up

The District Attorney made an application to the court requesting that the respondent be permitted to shave his beard under the direction of the prison warden for the purposes of appearing in a line-up. The respondent was alleged to be one of two men to have committed robbery. At the time of the arrest the respondent was clean shaven but since he was incarcerated the defendant grew out his facial hair and refused to shave. The District Attorney asserted that the respondent would be unrecognizable with his beard and he was using it as a disguise which would result in identification being difficult if not impossible.

The respondent’s privilege against self-incrimination would not be violated if he would be subjected to participate in a compulsory lineup. There was distinct difference between requiring accused to display his bodily features and compelling him to testify against himself. Where an accused is required to perform physical acts or perform demonstrations, his constitutional privileges will not be infringed. For example in Holt v United States, 218 U.S. 245, the defendant was required to put on a blouse to see if it fits and it was held that his Fifth Amendment rights were not violated. In United States v. Wade, 388 U.S. 218, the criminal defendant was asked to put strips of tape on each side of his mouth, like of the person that committed the robbery and utter words allegedly uttered by the robber in a line-up without his lawyer being informed. He was identified as the culprit. It was held that compelling the defendant to utter words which the robber allegedly said was not compulsion to utter statements of a ‘testimonial’ nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt. In Breithaupt v. Abram, 352 U.S. 432, it was stated that the interest of the individual must be balanced against the interests of the society where the defendant’s blood was withdrawn while he was unconscious person in a fatal automobile accident. In People v. Strauss, 174 Misc. 881 which was compared with the instant case where the District Attorney applied for an order requiring that the defendant be forcibly shaved and the hair on his scalp trimmed for his appearance in court. The court granted the application as the trial court can direct the defendant where to sit, the direction he should face and stand and strip him of artificial covering.

The respondent in this case the application was denied because there was no proceeding against the defendant in Queens County. He was only a suspect where there was no probable cause for his arrest and was in custody on entirely unrelated charge, the court did not have power to order a suspect’s beard forcibly removed prior to lineup appearance. DWAI was not charged.

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