delivered the opinion of the Court.
The prosecuting attorney filed an information against Cristino Rivas Mercado for the offense of forgery, § 413 of the Penal Code, 33 L.P.R.A. § 1641, in which he was charged that in December 1964 he “. . . falsely passed, uttered, and endorsed check number 146514 . . . payable to the order of Luis Guillermo Burgos . . . which check was cashed by the aforementioned defendant . . . knowing . . . that the signature of Luis Guillermo Burgos had been forged by him and that it had been falsely endorsed without the consent or permission of María Negrón Vega widow of Sierra, nor of Luis Guillermo Burgos, defendant being aware of the falsity, with the intent ... of defrauding, as he did defraud, Luis Guillermo Burgos and/or the International General Electric of Ponce, and/or the Government of the Commonwealth of Puerto Rico. . .
Cheek No. 146514 issued on September 12, 1964 by the Commonwealth of Puerto Rico, in favor of Luis Guillermo Burgos (People’s Exh. 1), was offered and admitted in evidence at the trial. There is a first endorsement on the hack of the check with the name of Luis Guillermo Burgos, and a second endorsement with the name of María Vega Negrón widow of Sierra, both written with ball-point pen, as well as a stamped order for deposit to the account of International General Electric Puerto Rico, Inc.
While the special agent Luis A. Segarra was testifying, the incident which gave rise to the present appeal concerning the admission of some specimens of handwriting taken by said witness from the defendant occurred. It appears from the partial transcript appearing in the record that in the *388course of the investigation that was being made in San Juan, agent Segarra was asked to take a specimen of Cristino Rivas Mercado’s handwriting who was “among the persons who could be suspects.” In fulfilling the commission the agent visited the defendant at his home and, without giving him any warning, he asked him to write the names Luis Guillermo Burgos and María Vega widow of Sierra. He obtained it. In fact, People’s Exhibit 2 consists of three sheets of ruled notebook paper which contain the names of Luis Guillermo Burgos, 16 times in pencil, and 5 in ballpoint pen, and of María Vega widow of Sierra, 16 times in bail-point pen. On the third sheet there is a note in a different handwriting, which says: “11/8/65 Hr. 1:30 P.M. These specimens of handwriting were taken from Cristino Rivas Mercado in his house in 449 Callejón Fagot of Cantera, Ponce, on November 8, 1965, by the S.A. Luis A. Segarra, 1498, of the Detective of Ponce.” Below, there is defendant’s signature.
When the calligraphic exemplars were presented in evidence, the respondent judge refused to admit them on the ground that “the handwriting is the equivalent of an oral confession of guilt” because it leads to the production of an expert testimony on its verification with the forged signatures,1 and elaborating on that point he added that “it is practically a testimony which defendant gave because it results in providing testimonial evidence against himself.” At the request of the People, we issued a writ of certiorari to review this decision.
(1) The nature of the offense and of the objected evidence — exemplars of the signatures allegedly forged in prosecution for forgery — leads us to conclude that because in this particular case a critical stage of the investigation is *389involved, the suspect had a right to be warned of his right to assistance of counsel. As outlined in United States v. Wade, 388 U.S. 218 (1967), the governing criterion to determine the need of aid of counsel in the stages prior to the trial is the very possibility that a substantial prejudice could be caused to defendant. It is necessary for that purpose to canvass the circumstances which surround the confrontation which has taken place and the fruits thereof. It is very difficult to conceive a situation more impregnated with risk for a person accused of the offense of forgery than the one which is presented in this case because the activity of the officers in charge of the investigation sought to obtain the evidence which was necessary par excellence to achieve a conviction. It is enough to compare the exemplars obtained with the signatures at the back of the check, which was already presented and admitted in evidence, to prove what we have said. Under those circumstances, it was indispensable to warn the suspect of his right to legal assistance. Since it is precisely the offense of forgery which is being dealt with, whose essential probatory element is the identity of the handwriting attributed to the defendant, it could be affirmed that there is practically no difference from the incriminating oral admissions to which we referred in adopting the rule of Rivera Escuté v. Delgado, Warden, 92 P.R.R. 746 (1965).
The Solicitor General relies exclusively on expressions of the opinion rendered in Gilbert v. California, 388 U.S. 263 (1967).2 But the rule of the precarious majority which is *390established in said case is not to be applied in an inflexible manner, without knowing the facts and particular circumstances which surround each different situation. Therefore, in our case, the evidence par excellence to establish the offense of forgery is involved; in Gilbert, it was the evidence obtained with relation to the investigation for the prosecution of other offenses different from the one in which exemplars were used.
In United States v. Wade, 388 U.S. 218 (1967), the need of the presence of counsel was sustained to aid a suspect who, for the purposes of identification, is requested to participate in a lineup because said confrontation “is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.” In fact, as Mr. Justice Fortas states in his dissenting opinion in Gilbert, we do not find any rational ground to establish a distinction between this situation and the taking of a calligraphic exemplar to be used in a forgery proceeding. Certainly, no cross-examination can correct the prejudices caused by the delivery of an incriminating calligraphic exemplar.
It is necessary to explain that the district attorney expressly admitted that “Cristino Rivas was among the persons who could be a suspect,” (Tr. Ev. 1) and, therefore, *391the investigation partook of an accusatory nature. The limitation which is sought to he made in the dissenting opinion lacks importance due to the fact that Rivas was not the only suspect. The language of Rivera Escuté v. Delgado, Warden, supra, which is invoked to that effect, does not have the restrictive scope attributed to it, and it must be considered in the light of the facts which surrounded that case.
(2) Finally, we specifically state that we justify the dismissal of the evidence offered, not on the grounds that the right against self-incrimination is violated, but because of the lack of aid of counsel in a critical stage prior to the forgery prosecution.
We share the same concern of the dissenting opinion as to the protection which the community deserves against the growing occurrence of crimes. But we are unable to perceive the apocalyptic vision contemplated as a result of our decision of such a limited effect to a simple case of forgery. Certainly, these problems of the rights of the defendants deserve to be weighed on the judicial level with serenity and caution, devoid of any sense of hysteria and panic.
The writ issued will be quashed.
Mr. Justice Blanco Lugo delivered a separate opinion. Mr. Justice Santana Becerra concurs in the result in a separate opinion. Mr.. Justice Ramírez Bages dissented in an opinion in which Mr. Justice Torres Rigual concurs. Mr. Justice Rigau did not participate herein.—0—
Separate opinion of
Mr. Justice Blanco Lugo.San Juan, Puerto Rico, June 28, 1968
When the doctrine of exclusion of confessions obtained from a defendant or suspect who is under police custody, or under the custody of another proper authority, while he is *392interrogated to obtain incriminatory statements, because of not warning him of his rights of not incriminating himself and of aid of counsel in said act, is adopted, Rivera Escuté v. Delgado, Warden, 92 P.R.R. 746 (1965), we cannot see how the equal protection could be denied when we are dealing not with the confession or admissions, but with other nontestimonial evidence given by the defendant which, as to its effects, is equally prejudicial and incriminating. Any distinction sought to be made is purely artificial and sophistic; it is at variance with reason and logic because the same grounds for exclusion are present in both situations.
I am aware that the contrary position may find support, as a general proposition, in expressions of the Federal Supreme Court in Schmerber v. California, 384 U.S. 757 (1966), and Gilbert v. California, 388 U.S. 263 (1967). However, I believe that under the cardinal obligation of giving content to similar guarantees sanctioned by the Constitution of the Commonwealth of Puerto Rico — the right not to incriminate himself, to aid of counsel, and to be prosecuted within the norms of the due process of law — said interpretation does not deserve our affirmance.
Because of the additional ground that it was proper to warn the defendant before taking the calligraphic exemplars, of his right not to incriminate himself, I would sustain the exclusion of the evidence presented.
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Among the witnesses in the back of the information, there appears Rafael Viñas Negrón, who is identified as the examiner of exhibits of the State Police.
Gilbert was convicted of armed robbery in a bank of Alhambra, California, and of the murder of a police officer who tried to avoid the robbery. He had been arrested in Philadelphia by FBI agents and he had refused to answer questions about the Alhambra robbery. He later did answer questions about some Philadelphia robberies in which the robber used a handwritten note demanding that the money be handed over to him. During the investigation, at the request of the agents who were interrogating him, he gave some handwriting exemplars. They were presented and admitted in evidence at the trial for the Alhambra robbery.
After rejecting the allegation that the taking of the exemplars *390violates the right of not incriminating himself, it is said in the majority opinion:
“The taking of the exemplars was not a ‘critical’ stage of the criminal proceedings entitling petitioner to the assistance of counsel. Putting aside the fact that the exemplars were taken before the indictment and appointment of counsel, there is minimal risk that the absence of counsel might derogate from his right to a fair trial. [Citation.] If, for some reason, an unrepresentative exemplar is taken, this can be brought out and corrected through the adversary process at trial since the accused can make an unlimited number of additional exemplars for analysis and comparison by government and defense handwriting experts. Thus, ‘the accused has the opportunity for a meaningful confrontation of the [State’s] case at trial through the ordinary processes of cross-examination of the [State’s] expert [handwriting] witnesses and the presentation of the evidence of his own [handwriting] experts.’ [Citation.]”