Moot Court 5th Amendment Petitioner

Petitioner

Madam Chief Justice may I set aside two minutes for rebuttal? 

(Mister/Madam) Chief Justice, Your Honors, and may it please the court. My name is Emma Hall and I will be representing the Petitioner, Mr. William DeNolf, as his 5th amendment rights have been violated in this case. The mind is the “hub of communication” and with that, should be protected under the 5th Amendment, and has been in prior cases. That said, I respectfully request that you reverse the ruling of the lower courts following the two reasons:  

1. First, Mr. DeNolf’s FBME test was communicative
2. Second, Mr. Denolf was under compulsion when he completed the FBME test        

To my First Point Your Honors: 

        The 5th Amendment outlines that “no person shall be compelled in any criminal case to be a witness against himself.” The mind is the “hub of communication” and the FBME test specifically illicited Mr. DeNolf’s mind to give a response in regards to the pictures that were placed in front of him. The FBME is an unspoken answer in response to an unspoken question, which measures brain waves in the context of pictures being shown to the individual in testing. In Doe v. United States, the mind is included in the areas of protection for the individual. In this case specifically, Mr. DeNolf’s thoughts were in fact used against him as a witness in the FBME test. In regards to an individual’s thoughts, they are considered a testimonial expression which would protect them under the 5th Amendment.  Also in Doe v. United States it states that “to be testimonial, an accused oral or written communication or act, must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Further in the case, the courts ruled that “an expression of the content of the mind is testimonial.” Therefore, by previous precedent, the FBME test is communicative. In Schmerber v. California, the court ruled that “to compel a person to submit to testing in which an effort will be made to determine his guilt or innocence based on physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment.” This same court also held that the 5th Amendment priviliege extends to “an accused’s communications, whatever form they might take.”  This test was directly used against Mr. DeNolf to coroborate his story, and to subsequently convict him by using the expressions of his mind. Keeping this case in mind, we ask the courts to reverse the previous court’s ruling and rule in favor of the petitioner, Mr. DeNolf.

to my second point your honors:

        The FBME test is compulsory in and of itself. The FBME result is a compelled physiological response, similar to a reflex, that Mr. DeNolf is unable to control, and is therefore compelling his mind to illicit information.  Mr. DeNolf was compelled to take the test by the police officers who had detained him, and any reasonable person in the same or similar circumstance would follow the orders of the officers as he did. Also, there was a warrant for Mr. DeNolf’s cooperation, and while it is not clear what the warrant specifically said, any other reasonable person in Mr. DeNolf’s position would have acted in the same manner as he did, and cooperated.  Additionally, Mr. DeNolf invoked his Fifth Amendment right during the questioning prior to the test, when he refused to answer any more questions, yet the officers continued. The police knew that Mr. DeNolf could have been lying about being present because they had seen him at the hotel. According to Innis v. Rhode Island, escorting Mr. DeNolf to the testing center to complete the FBME test was a form of interrogation by the police.