(dissenting). I respectfully dissent. The privilege against self-incrimination was one of the rights specifically discussed in the case of In re Gault, 387 US 1; 87 S Ct 1428; 18 L Ed 2d 527 (1967). In response to the argument that juvenile proceedings are "civil” and not "criminal” in nature and therefore the privilege against self-*598incrimination should not apply, the United States Supreme Court disussed the wording of the Fifth Amendment and stated:
"However, it is also clear that the availability of the privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites.” 387 US 49.
The Court held that although juvenile proceedings were not labelled "criminal”, the results were the same. Determination of delinquency could lead to commitment to a state institution and in some states even to an institution in which adult criminals were kept. The Court stated further:
"For this purpose, at least, commitment is a deprivation of liberty. It is incarceration against one’s will, whether it is called 'criminal’ or 'civil’. And our Constitution guarantees that no person shall be 'compelled’ to be a witness against himself when he is threatened with deprivation of his liberty — a command which this Court has broadly and generously implemented in accordance with the teaching of the history of the privilege and its great office in mankind’s battle for freedom.” Id., 387 US at 50; 87 S Ct at 1455-1456; 18 L Ed 2d at 558-559. (Footnote omitted.)
That same rationale should apply here to preclude an individual from being compelled to assist the state in succeeding in a civil commitment proceeding which deprives him of his liberty. To hold otherwise would fly in the face of the very purpose of the Fifth Amendment to our constitution. The majority’s analogy of testimony from a respondent in a commitment hearing to physical evidence admissible in criminal trials is strained at best. Physical evidence is admissible in criminal trials because it relates to the issue of identifica*599tion of the defendant rather than disclosing the defendant’s knowledge or state of mind. By contrast, testimonial evidence does disclose knowledge or a present mental state and the Fifth Amendment has always protected a person from being compelled to reveal his mental state when a deprivation of liberty might result. I differ with the majority’s statement that "No witness has the privilege to refuse to reveal to a trier of fact pertinent physical or mental characteristics where they are relevant to issues under consideration”. In a criminal trial, a defendant is privileged under the Fifth Amendment from being compelled to reveal his mental state even though his mens rea is at issue. This same privilege should extend to a respondent in a civil commitment proceeding. In the case of Tyars v Finner, 518 F Supp 502 (CD Cal, 1981), the Court stated:
"The California Supreme Court held that petitioner could be 'required to respond to nonincriminatory questioning which may have revealed his mental condition to the jury, whose duty it was to determine whether he was mentally retarded.’ Cramer [v Tyars, 23 Cal 3d] 139; 151 Cal Rptr 653; 588 P2d 793 [1979], It analogized the receipt of such evidence to the permissible disclosure of physical as opposed to testimonial evidence. The enforced testimony of petitioner, it held, was not communications or testimony in the sense of disclosing knowledge. Id.
"That rationale cannot withstand close scrutiny. In fact, as the California Court itself said (id.), such evidence 'may in fact be the most reliable proof and probative indicator of the person’s present mental condition.’ That is why it cannot be compelled. ” Id., 509.
I am persuaded that Tyars, supra, rests on sound analysis regarding the scope of protection provided by the Fifth Amendment and the policy *600reasons for such. I see no good reason for refusing to extend the Fifth Amendment privilege in civil commitment proceedings except for the paternalistic view that the state is really just trying to help the respondent. Even if this were true, I believe that interest to be outweighed by the respondent’s fundamental right not to be compelled to provide testimonial evidence which may result in his incarceration. If a respondent is really a danger to himself or the community, the state should be able to prove it through other means.
I would reverse.