dissenting:
The majority decides that a trial court may order a criminal defendant to alter his organic appearance and to change a personal habit in order that he may better coincide with the prosecution’s description of the perpetrator of the crime. This decision goes far beyond the cases, relied on by the majority, dealing with federal constitutional principles. Moreover, it does not comport with Article 22 of the Maryland Declaration of Rights as applied by this Court.
I.
In order to appreciate the reach of the majority’s decision, it is necessary to distinguish between the undisputed facts of the case, which relate to the time period from and after petitioner’s arrest, and the State’s factual allegations connecting petitioner to the crimes. At the time he was alleged to have perpetrated the crimes, and for nearly a year preceding that date, petitioner supposedly sported sideburns, a mustache, a beard and a full head of hair. These allegations were supported by the testimony of the State’s witness Betty Brown, who claimed that she had helped petitioner remove most of that tonsorial matter immediately *641after petitioner had allegedly entered her apartment and announced his commission of the crimes with which he was later charged. But it is undisputed that when petitioner was arrested, more than two weeks after the crimes were committed, the police found him almost completely bald, although he did wear "a chin beard and a mustache.” The State, having difficulty in obtaining a positive identification of petitioner as the perpetrator by any one of at least three witnesses, thereupon requested that petitioner be ordered to refrain from shaving his head and his facial hair. The court, finding no constitutional impediment to such an order, granted the State’s motion.
The trial judge stated that the order was consistent with constitutional requirements because
"the defendant, by attempting to alter his appearance is attempting to defeat legitimate avenues of identification. All of the cases that I have read which discuss this matter are uniform in their condemnation of disguise on the part of the accused, which disguise is used either for purposes of attempted escape or attempted avoidance of identification at a later date.” (Emphasis added.)
But the crux of the issue lies here: how did the trial judge know that petitioner had attempted to alter his bodily appearance and that his appearance at the time of arrest was indeed a disguise?
The petitioner did not attempt, after he was arrested and first seen by law enforcement officials, to change his appearance. Instead, the trial court ordered that the petitioner refrain from shaving and thereby modify his bodily features which existed at the time of the arrest. The effect of the order was to make petitioner’s features conform to the State’s description of the perpetrator of the crimes. This was coercing the petitioner to change his appearance in order to incriminate himself. The trial court’s finding of "disguise” was based upon the court’s crediting the State’s identification evidence linking petitioner to the crimes. However, in *642a criminal case where the defendant has demanded a jury trial, the Sixth Amendment makes this a function of the jury and not the court.
This is not a "disguise” case similar to any relied on in the State’s brief and in the majority opinion. One category of "disguise” cases involves the situation of a defendant who, at the time of his arrest, very much resembles the witnesses’ descriptions of the perpetrator of the crime. But after arrest, while in jail pending trial, the defendant intentionally alters or attempts to alter his bodily appearance by, for example, shaving when he had a beard at the time of arrest or refraining from shaving when he was clean-shaven at the time of arrest. In these instances, courts have held that it is permissible to order the defendant to restore and maintain his appearance to that of the time of arrest. This was the situation in United States v. Lamb, 575 F.2d 1310 (10th Cir.), cert. denied sub nom. Clary v. United States, 439 U.S. 854, 99 S.Ct. 165, 58 L.Ed.2d 160 (1978), a case relied on heavily by the majority. See also Dove v. State, 47 Md.App. 452, 423 A.2d 597 (1980); State v. Byrne, 595 S.W.2d 301 (Mo.App. 1979), application for appeal to the Supreme Court of Mo., denied, April 8, 1980, cert. denied, 449 U.S. 951, 101 S.Ct. 355, 66 L.Ed.2d 215 (1980).
In another category of "disguise” cases, the perpetrator of the crime uses certain clothing or accessories to create a disguise at the time of the commission of the crime. Such disguises have included a scarf over the face, United States v. Gaines, 450 F.2d 186, 195-96 (3d Cir. 1971), cert. denied, 405 U.S. 927, 92 S.Ct. 978, 30 L.Ed.2d 801 (1972), or a jacket and sunglasses, Lucero v. People, 166 Colo. 233, 237, 442 P.2d 820 (1968), or strips of tape on the face, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). A variation on this line of cases occurs when the perpetrator of the crime, while not necessarily "disguised,” wears a particular item of clothing, such as a hat, State v. Williams, 307 Minn. 191, 239 N.W.2d 222 (Minn. 1976), or a blouse, Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 *643(1910), and then at some time abandons the garment. In all of these cases, also, it has been held that the defendant may properly be called upon to try on, briefly for identification purposes, the garments or accessories. Holt v. United States, supra. See also U.S. v. Dionisio, 410 Ü.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1967).
The holdings in the above cited disguise cases are squared with the Fifth Amendment’s self-incrimination clause on the theory that the privilege against compelled self-incrimination generally applies only to oral or written material which is testimonial or communicative. Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); see Fisher v. United States, 425 U.S. 391, 411, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). It has been held that the use of the actual body of the defendant for a demonstration is ordinarily not a communicative or testimonial activity within the protection of the Fifth Amendment.
However, the principle that compelled interference with the defendant’s body does not implicate the concept of self-incrimination is not absolute. In certain situations, forceable interference with the defendant’s body has been held to violate the prohibition against compulsory self-incrimination applicable to State proceedings under the Fourteenth Amendment. See, e.g., Rochin v. California, 342 U.S. 165, 172-74, 72 S.Ct. 205, 96 L.Ed. 183 (1952).
The decision of the court today goes far beyond any of the cases upholding the use of a defendant’s body as evidence. Here we have a suspect who was clean shaven at the time of arrest, and the trial court ordered him to grow hair. The trial court may have believed that it was directing the petitioner to stop trying to disguise himself. But the only basis for this belief was the trial court’s crediting the prosecution’s evidence linking the petitioner to the crimes. By believing the State’s allegations, and finding that the petitioner’s appearance was a disguise, the court seemed to assume that the defendant was guilty until proven innocent. In other words, the trial court necessarily had to accept the testimony of the State’s witnesses Betty Brown and Detective Orbin, *644indicating that the petitioner was the person who had committed the crimes, that he had changed his bodily appearance soon after, and that this was the reason he did not resemble the other witnesses’ descriptions of the perpetrator. However, whether to believe the State’s identification evidence relating to the period soon after the crimes were committed, was a matter for the jury and not the court under the jury trial clause of the Sixth Amendment. By ordering petitioner to stop shaving, the court was ordering him to assume an appearance comporting with the State’s description of the perpetrator, in order that the petitioner could less burdensomely (for the State) be prosecuted and convicted.
The trial court in this case was not ordering petitioner to give a brief demonstration by putting on an item of clothing. Nor was the court ordering petitioner to refrain from changing his features as they existed when he was arrested and first seen by law enforcement officials. Rather, the court was ordering him to try to look more like the person for whom the State was looking. The court was ordering a man, who, for all the court properly knew, had been clean shaven all of his life and was not the guilty party, to change his personal toilet habits, to change the status quo of his bodily features, and to assume a different appearance. Simply stated, the court was taking an individual and trying to make him fit the description of the perpetrator of the crimes. I have been unable to find any case which goes so far. The majority decision cannot, in my judgment, be reconciled with the Fifth Amendment’s self-incrimination clause, with the right to a jury trial guaranteed by the Sixth Amendment, and with the Fourteenth Amendment’s due process clause.
II
In addition to the federal constitutional problems presented in this case, I believe that the trial court’s order was inconsistent with Art. 22 of the Maryland Declaration of Rights, which provides "[t]hat no man ought to be compelled to give evidence against himself in a criminal case.” *645In Allen v. State, 183 Md. 603, 39 A.2d 820 (1944), this Court made it clear that Art. 22 of the Declaration of Rights encompasses more than oral testimony, and that it embraces certain physical demonstrations linking the defendant with the crime.
In Allen the trial judge made the defendant, in open court, try on a hat which allegedly belonged to the perpetrator of the crime, in order to show that the defendant might be the owner of the hat and thus the guilty party. This Court, rejecting the line of cases which viewed the privilege against self-incrimination as limited to testimonial evidence, held that the trial court’s order violated Art. 22.
Although the facts of the Allen case may be different from those in the case at bar, the principles announced by this Court in Allen clearly require a reversal in the present case. After discussing the history of the prohibition against compulsory self-incrimination, Judge Melvin for the Court stated that "[t]he principle has always been liberally construed in order to give the fullest effect to this immunity,” 183 Md. at 607. This Court then acknowledged that cases throughout the country were in disagreement as to how far the prosecution could go in compelling a defendant "to perform some affirmative act to aid the State in connecting him with the crime ....” Id. at 607-608. The Court then aligned itself with cases such as Ward v. State, 27 Okl. Cr. 362, 228 P. 498 (1924) and others, holding that the privilege against compulsory self-incrimination "embraces as well the involuntary furnishing of evidence by the accused by some affirmative act in open court which might aid in establishing his guilt.” 183 Md. at 609. The Allen Court set forth the governing standard as follows (id. at 611):
"[T]he test is who furnished or produced the evidence? If the accused, especially if in open court and on the witness stand, is made to do so by performing an act or experimentation which might aid in connecting him with the crime and establishing his guilt, it is inadmissible.”
*646The Court in Allen concluded by stating that under Art. 22, "judicial protection is afforded an accused from being compelled to perform an evidence-producing act,” and that "[s]uch an interpretation, we think, conforms to the true spirit of this ancient principle of law and gives to it the best effect in dealing with the human, personal rights which it was designed to safeguard.” 183 Md. at 613.
Applying the above principles to the present case certainly should lead to a reversal. This is not a mere identification case, where the defendant is required to exhibit passively his body to the jury or permit it to be fingerprinted. Rather, the defendant was required to perform the affirmative act of changing his body from its appearance when he was first arrested, and first seen by the police and the court, in order to produce evidence connecting him with the crime. He was required to sit in open court throughout the entire trial, exhibiting to the jury the change forced upon his bodily features so that he would resemble the State’s description of the perpetrator. In the language of the Allen test, the defendant was being made to furnish evidence in open court "by performing an act or experimentation which might aid in connecting him with the crime and establishing his guilt ....” 183 Md. at 611.1
III
The ramifications of the majority’s holding in this case are alarming. For example, suppose the prosecution’s evidence shows that the perpetrator of a crime is very fat, and suppose that the defendant when arrested many months later is quite thin. Under the majority’s decision, if the prosecution *647can produce a witness stating that, immediately after the crime, the defendant took steps to alter his appearance by going on a diet, presumably the trial court can order that the defendant be fattened up, and force fed, much like the goose whose liver will become pate. Other possibilities of grotesque situations arising under today’s ruling are perhaps better left to the imagination.
Finally, in the instant case it was totally unnecessary for the prosecutor to have requested an order requiring the petitioner to change his features. The State had convincing evidence that petitioner, immediately after the crime, had indeed altered his appearance. The evidence consisted of testimony by a witness, Mrs. Brown, with whom petitioner shared an apartment and who claimed that she actually helped petitioner remove hair from his head. In addition, the State had as evidence a sponge and a razor on which hair was found, all from Mrs. Brown’s apartment. This evidence, if it had been presented to the jury, would, in the context of all of the other evidence, have been just as strong as the exhibition of the petitioner with the compelled bodily changes. In its presentation, the State could have argued that it was unable to obtain a satisfactory identification of defendant as the perpetrator because he had disguised himself by shaving his hair. Such a line of argument has been held to be entirely proper, United States v. Jackson, 476 F.2d 249, 253 (7th Cir. 1973).
The principal danger of today’s decision is that it sanctions the trial court’s assumption that the man charged is indeed the guilty party. It sanctions the trial court’s acceptance of the State’s evidence indicating that the reason the defendant does not fit the witnesses’ descriptions of the criminal is because he had disguised himself. These are not matters for the court to pass upon but, instead, should be reserved for the jury. While it is clear that a defendant who deliberately changes his appearance after his arrest may be ordered to revert to the appearance at the time of his arrest, the converse is not true. A party who does not alter his appearance after his arrest should not be compelled to *648change his organic features later in order to fit the prosecutor’s description of the perpetrator. No case cited by the majority upholds such a practice. The practice cannot, in my view, be reconciled with federal and state constitutional principles.
Judges Cole and Davidson have authorized me to state that they concur with the views expressed herein.
. The majority relies on the statement by Judge Henderson for the Court in Williams v. State, 231 Md. 83, 86-87, 188 A.2d 543, cert. denied, 375 U.S. 851, 84 S.Ct. 109, 11 L.Ed.2d 78 (1963), that Allen has "no application to tests or observations made by third persons out of court.” Assuming the correctness of this limitation, it has no relevance to the present case. The trial court in the case at bar ordered the change in the petitioner’s bodily features, and petitioner was required to sit throughout the trial exhibiting the changed features to the jury.