Dec. 3, 2014 – Ramon Gonzalez was required to show the jury his platinum teeth during his trial for battery against a fellow jail inmate. Recently, the state Supreme Court rejected Gonzalez’s argument that this violated his right against self-incrimination.

The victim had testified that one of his attackers had platinum teeth. In general, defendants have a constitutional right to avoid “testifying” in response to questions that could self-incriminate, a right under both the U.S. and Wisconsin constitutions.

Although Gonzalez was not “testifying” when he showed the jury his teeth, he argued that his teeth had a testimonial aspect – they conveyed a negative message by looking “fierce” – and physical evidence with a testimonial aspect is constitutionally protected.

But in State v. Gonzalez, 2014 WI 124 (Dec. 3, 2014), a unanimous Wisconsin Supreme Court ruled that Gonzalez’s teeth were not constitutionally protected.

“We hold that the evidence of his platinum teeth was physical evidence that did not have a testimonial aspect sufficient to implicate constitutional protections,” wrote Justice Patrick Crooks for the unanimous court. “The relevant question under the case law is whether the evidence in question expresses, makes use of, reveals, or discloses the contents of the defendant’s mind. Teeth do not do so."

Jailhouse Attack

Multiple inmates attacked another inmate at the Milwaukee County Jail. Gonzalez was among the suspects, and was later charged with battery as a party to a crime.

The defense primarily challenged the charge on the grounds that Gonzalez could not be identified. The victim claimed under oath that he was unable to identify his attackers. In addition, a video of the attack was grainy and the defense argued that it was insufficient.

However, a deputy testified Gonzalez was one of the attackers. The victim also told officers that a person with platinum teeth from cell 10 was among the attackers. Gonzalez was from cell 10, had platinum teeth, and his nickname was “Platinum.”

The defense objected when the prosecutor asked Gonzalez to show his teeth to the jury, and the judge overruled it. Ultimately, Gonzalez was convicted. His post-conviction motion for a new trial was denied and the court of appeals affirmed the conviction.

No Fifth Amendment Violation

The supreme court noted that the Fifth Amendment to the U.S. Constitution, as well as the Wisconsin Constitution, protects persons from being witnesses against themselves.

The court also noted that the U.S. Supreme Court, in some cases, allow distinguishing characteristics of a defendant to be used against him or her even if incriminating.

That is, forcing a defendant to answer a question through “communication” is different from requiring the defendant to exhibit a physical characteristic as evidence.

“In keeping with this distinction, courts have held that there is no violation of the Self-Incrimination Clause where a defendant is compelled to show his or her body, or to display tattoos, scars, physique, or limbs,” Justice Crooks noted.

But Crooks also noted that the U.S. Supreme Court “has recognized that some physical evidence has a sufficiently testimonial aspect to warrant Fifth Amendment protection.”

For instance, the U.S. Supreme Court has reviewed whether a drunk driving defendant’s right against self-incrimination was violated when police questioning elicited evidence of his slurred speech and an inability to pinpoint the date of his sixth birthday.

The Court ruled that evidence of slurred speech, his physical delivery of speech communication, was separate from the defendant’s actual thoughts and not protected.

But evidence that the defendant could not correctly answer the birthday question was not allowed, the court ruled, because the “testimony” supported the negative inference that he was mentally impaired, and evidence of mental thoughts are protected.

Gonzalez seized on this drunk driving case, Pennsylvania v. Muniz, to argue that forcing him to show his teeth was like forcing the drunk driving defendant to answer a question about his birthday – in both cases, the jury was allowed to make negative inferences.

The supreme court rejected that argument. It noted that in Muniz, the testimonial evidence was problematic because it elicited a self-incriminating detail about his mind.

“Gonzalez’s display of his teeth did not disclose anything to the jury about his mental state or the content or working of his mind,” Crooks wrote. “The content or message he claims the teeth convey – that he is tough and fierce (and therefore more likely to assault someone) – was not the type of disclosure that was problematic in Muniz.”

Justice Crooks said the teeth were like other non-testimonial physical evidence, such as tattoos or scars, which are not protected even if they carry negative connotations.

Finally, the court rejected Gonzalez’s argument that his teeth were immaterial evidence, and thus inadmissible, because there was other identification evidence available.

“Gonzalez’s approach would appear to require us to hold that once any evidence serves the purpose of identification, any additional evidence offered to corroborate it would be immaterial,” wrote Crooks, noting that prosecutors must satisfy a high burden of proof.