Also known as: real evidence · physical evidence · tangible evidence
Written by attorneys · grounded in primary & secondary sources — see below
Evidence consisting of physical objects or bodily characteristics that can be observed or measured without requiring the suspect to communicate information. Compulsion to produce such evidence does not implicate the Fifth Amendment privilege against self-incrimination because the privilege bars only testimonial or communicative evidence.
Renee Rogers is prosecuted for sexual assault. The prosecution introduces a rape kit showing semen and abrasions. Defense counsel seeks to introduce evidence that the victim had consensual sex with another man earlier that day to show the semen came from someone else. The court admits the evidence under the exception for physical evidence of source.
Ruby Rivera is charged with robbery. Her lawyer removes cash and a weapon from the client's apartment and places them in a new safe deposit box. Police later discover the lawyer's actions. The court holds the items are real or physical evidence not protected by attorney-client privilege and orders their production.
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Riley Rivera tells counsel the location of a bloody shirt from the crime scene. Counsel retrieves and relocates the shirt to a different location. Police later find the shirt. The court rules the shirt itself is real or physical evidence that must be turned over even though the client's communication about its original location remains privileged.
Rosalind Reed's lawyer receives a knife from a third party after a privileged conversation. The lawyer retains the knife for several weeks to test for fingerprints and DNA. The court requires the lawyer to surrender the knife to authorities after a reasonable period while protecting the communication that led to its discovery.
Ryan Roberts is arrested for drunk driving. Officers direct a physician to draw a blood sample over his objection. The sample is analyzed for alcohol content. The court holds the blood draw produces real or physical evidence and does not violate the privilege against self-incrimination.
Rhea Reynolds is arrested after officers seize a weapon and stolen property from her residence. Local newspapers publish details of the physical items recovered. The court permits the reporting because the items constitute real or physical evidence whose discovery may be disclosed without revealing protected communications.
No. The privilege protects only against compulsion to provide testimonial or communicative evidence. A blood sample is real or physical evidence that can be obtained without violating the privilege.
Supporting sources
No. Physical evidence itself is not protected by the attorney-client privilege even when its location is learned through a privileged communication. Counsel may examine the item for a reasonable time but must ultimately turn it over to authorities.
In a criminal case, evidence of specific instances of a victim's sexual behavior is admissible if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence.
Yes. Requiring a suspect to appear in a lineup, speak for identification, or provide fingerprints produces real or physical evidence rather than testimonial communications and therefore does not implicate the Fifth Amendment privilege.
Supporting sources
…and experience requirements for laboratory personnel; the laboratory’s physical facilities and security measures; control of physical evidence; validation of testing methodologies; procedures for analyzing samples, including the reagents and controls that are used in the testing process; equipment calibration and maintenance;…