OCTOBER TERM, 1999
Syllabus
UNITED STATES
v. HUBBELL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
No. 99-166. Argued February 22, 2000-Decided June 5, 2000
As part of a plea agreement, respondent promised to provide the
Independent Counsel investigating matters relating to the
Whitewater Development Corporation with information relevant to his
investigation. Subsequently, the Independent Counsel served
respondent with a subpoena calling for the production of 11
categories of documents before a grand jury in Little Rock,
Arkansas. Respondent appeared before that jury, invoked his Fifth
Amendment privilege against self-incrimination, and refused to
state whether he had the documents. The prosecutor then produced an
order obtained pursuant to 18 U. S. C. § 6003(a) directing
respondent to respond to the subpoena and granting him immunity to
the extent allowed by law. Respondent produced 13,120 pages of
documents and testified that those were all of the responsive
documents in his control. The Independent Counsel used the
documents' contents in an investigation that led to this indictment
of respondent on tax and fraud charges. The District Court
dismissed the indictment on the ground that the Independent
Counsel's use of the subpoenaed documents violated 18 U. S. C. §
6002-which provides for use and derivative-use immunity-because all
of the evidence he would offer against respondent at trial derived
either directly or indirectly from the testimonial aspects of
respondent's immunized act of producing the documents. In vacating
and remanding, the Court of Appeals directed the District Court to
determine the extent and detail of the Government's knowledge of
respondent's financial affairs on the day the subpoena issued. If
the Government could not demonstrate with reasonable particularity
a prior awareness that the documents sought existed and were in
respondent's possession, the indictment was tainted. Acknowledging
that he could not satisfy the reasonable particularity standard,
the Independent Counsel entered into a conditional plea agreement
providing for dismissal of the indictment unless this Court's
disposition of the case makes it reasonably likely that
respondent's immunity would not pose a significant bar to his
prosecution. Because the agreement also provides for the entry of a
guilty plea and a sentence should this Court reverse, the case is
not moot.
28
Syllabus
Held: The indictment against respondent must be
dismissed. Pp. 34-46.
(a) The Fifth Amendment protects a person from being "compelled
in any criminal case to be a witness against himself." The word
"witness" limits the relevant category of compelled incriminating
communications to those that are "testimonial." In addition, a
person such as respondent may be required to produce specific
documents containing incriminating assertions of fact or belief
because the creation of those documents was not "compelled" within
the meaning of the privilege. See
Fisher v.
United
States, 425 U. S.
391. However, the act of producing subpoenaed documents may
have a compelled testimonial aspect. That act, as well as a
custodian's compelled testimony about whether he has produced
everything demanded, may certainly communicate information about
the documents' existence, custody, and authenticity. It is also
well settled that compelled testimony communicating information
that may lead to incriminating evidence is privileged even if the
information itself is not inculpatory. Pp. 34-38.
(b) Section 6002 is constitutional because the scope of the "use
and derivative-use" immunity it provides is coextensive with the
scope of the constitutional privilege against self-incrimination.
Kastigar v.
United States, 406 U. S. 441. When a
person is prosecuted for matters related to immunized testimony,
the prosecution has an affirmative duty to prove that the evidence
it proposes to use is derived from a legitimate source wholly
independent of that testimony.
Id., at 460. This ensures
that the grant of immunity leaves the witness and the Government in
substantially the same position as if the witness had claimed his
privilege in the grant's absence. The compelled testimony relevant
here is not to be found in the contents of the documents produced,
but is the testimony inherent in the act of producing those
documents. pp. 38-40.
(c) The fact that the Government does not intend to use the act
of production in respondent's criminal trial leaves open the
separate question whether it has already made "derivative use" of
the testimonial aspect of that act in obtaining the indictment and
preparing for trial. It clearly has. It is apparent from the
subpoena's text that the prosecutor needed respondent's assistance
both to identify potential sources of information and to produce
those sources. It is undeniable that providing a catalog of
existing documents fitting within any of the 11 broadly worded
subpoena categories could provide a prosecutor with a lead to
incriminating evidence or a link in the chain of evidence needed to
prosecute. Indeed, that is what happened here: The documents sought
by one grand jury to see if respondent had violated a plea
agreement led to the return of an indictment by another grand jury
for offenses apparently unrelated to that agreement. The
testimonial aspect of respondent's act of production was the first
step in a chain
29
of evidence leading to this prosecution. Thus, the Court cannot
accept the Government's submission that respondent's immunity did
not preclude its derivative use of the produced documents because
its possession of the documents was the fruit only of the simple
physical act of production. In addition, the Government misreads
Fisher v.
United States, 425 U. S., at 411, and
ignores
United States v.
Doe, 465 U. S. 605, in arguing
that the communicative aspect of respondent's act of production is
insufficiently testimonial to support a privilege claim because the
existence and possession of ordinary business records is a
"foregone conclusion." Unlike the circumstances in
Fisher,
the Government has shown no prior knowledge of either the existence
or the whereabouts of the documents ultimately produced here. In
Doe, the Court found that the act of producing several broad
categories of general business records would involve testimonial
self-incrimination. Pp.40-46.
167 F.3d
552, affirmed.
STEVENS, J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER,
JJ., joined. THOMAS, J., filed a concurring opinion, in which
SCALIA, J., joined,
post, p.49. REHNQUIST, C. J., filed a
dissenting statement,
post, p. 49.
Ronald J. Mann argued the cause for the
United States.
With him on the briefs were Robert W Ray, Paul Rosenzweig, David
G. Barger, and Karl N. Gellert.
Deputy Solicitor General Dreeben argued the cause for the United
States Department of Justice as amicus curiae urging reversal. With
him on the brief were Solicitor General Waxman, Assistant Attorney
General Robinson, and Malcolm L. Stewart.
John W Nields, Jr., argued the cause for respondent.
With him on the brief was
Laura S.
Shores.
*
JUSTICE STEVENS delivered the opinion of the Court. The two
questions presented concern the scope of a witness' protection
against compelled self-incrimination: (1) whether the Fifth
Amendment privilege 1 protects a
* Ellen S.
Podgor and
Lisa Kemler
filed a brief for the National Association of Criminal Defense
Lawyers as
amicus curiae urging affirmance.
1 "No person ... shall be compelled in any criminal case to be a
witness against himself." U. S. Const., Arndt. 5.
30
witness from being compelled to disclose the existence of
incriminating documents that the Government is unable to describe
with reasonable particularity; and (2) if the witness produces such
documents pursuant to a grant of immunity, whether 18 U. s. C. §
6002 prevents the Government from using them to prepare criminal
charges against him.2
I
This proceeding arises out of the second prosecution of
respondent, Webster Hubbell, commenced by the Independent Counsel
appointed in August 1994 to investigate possible violations of
federal law relating to the Whitewater Development Corporation. The
first prosecution was terminated pursuant to a plea bargain. In
December 1994, respondent pleaded guilty to charges of mail fraud
and tax evasion arising out of his billing practices as a member of
an Arkansas law firm from 1989 to 1992, and was sentenced to 21
months in prison. In the plea agreement, respondent promised to
provide the Independent Counsel with "full, complete, accurate, and
truthful information" about matters relating to the Whitewater
investigation.
The second prosecution resulted from the Independent Counsel's
attempt to determine whether respondent had vio-
2 Section 6002 provides: "Whenever a witness refuses, on the
basis of his privilege against self-incrimination, to testify or
provide other information in a proceeding before or ancillary
to-
"(1) a court or grand jury of the United States,
"(2) an agency of the United States, or
"(3) either House of Congress, a joint committee of the two
Houses, or a committee or a subcommittee of either House,
"and the person presiding over the proceeding communicates to
the witness an order issued under this title, the witness may not
refuse to comply with the order on the basis of his privilege
against self-incrimination; but no testimony or other information
compelled under the order (or any information directly or
indirectly derived from such testimony or other information) may be
used against the witness in any criminal case, except a prosecution
for perjury, giving a false statement, or otherwise failing to
comply with the order."
31
lated that promise. In October 1996, while respondent was
incarcerated, the Independent Counsel served him with a subpoena
duces tecum calling for the production of 11 categories of
documents before a grand jury sitting in Little Rock, Arkansas. See
Appendix,
infra. On November 19, he appeared before the
grand jury and invoked his Fifth Amendment privilege against
self-incrimination. In response to questioning by the prosecutor,
respondent initially refused "to state whether there are documents
within my possession, custody, or control responsive to the
Subpoena." App. 62. Thereafter, the prosecutor produced an order,
which had previously been obtained from the District Court pursuant
to 18 U. S. C. § 6003(a),3 directing him to respond to the subpoena
and granting him immunity "to the extent allowed by law." 4
Respondent then produced 13,120 pages of documents and records and
responded to a series of questions that established that those were
all of the documents in his custody or control that were responsive
to the commands in the subpoena, with the exception of a few
documents he claimed were shielded by the attorney-client and
attorney work-product privileges.
The contents of the documents produced by respondent provided
the Independent Counsel with the information that led to this
second prosecution. On April 30, 1998, a grand jury in the District
of Columbia returned a 10-count indictment charging respondent with
various tax-related crimes and mail and wire fraud.5 The District
Court dismissed the
3 Section 6003(a) authorizes a district court to issue an order
requiring an "individual to give testimony or provide other
information which he refuses to give or provide on the basis of his
privilege against selfincrimination." The effect of such an order
is covered by § 6002, quoted in n. 2,
supra.
4 In re Grand Jury Proceedings, No. GJ-96-3 (ED
Ark., Nov. 14, 1996), App.60-61.
5 Several of the counts in the indictment also named three other
defendants. Those charges are not relevant because (a) they have
been dismissed with prejudice, and (b) the Fifth Amendment
privilege asserted
32
indictment relying, in part, on the ground that the Independent
Counsel's use of the subpoenaed documents violated § 6002 because
all of the evidence he would offer against respondent at trial
derived either directly or indirectly from the testimonial aspects
of respondent's immunized act of producing those documents.6 11 F.
Supp. 2d 25, 33-37
(DC 1998). Noting that the Independent
Counsel had admitted that he was not investigating tax-related
issues when he issued the subpoena, and that he had" 'learned about
the unreported income and other crimes from studying the records'
contents,'" the District Court characterized the subpoena as "the
quintessential fishing expedition."
Id., at 37.
The Court of Appeals vacated the judgment and remanded for
further proceedings.
167 F.3d
552 (CADC 1999). The majority concluded that the
District Court had incorrectly relied on the fact that the
Independent Counsel did not have prior knowledge of the contents of
the subpoenaed documents. The question the District Court should
have addressed was the extent of the Government's independent
knowledge of the documents' existence and authenticity, and of
respondent's possession or control of them. It explained:
"On remand, the district court should hold a hearing in which it
seeks to establish the extent and detail of the [G]overnment's
knowledge of Hubbell's financial affairs (or of the paperwork
documenting it) on the day the subpoena issued. It is only then
that the court will be in a position to assess the testimonial
value of Hubbell's response to the subpoena. Should the Independent
Counsel prove capable of demonstrating with reasonable
by respondent would not, in any event, affect the charges
against those other defendants.
6 As an independent basis for dismissal, the District Court also
concluded that the Independent Counsel had exceeded his
jurisdiction under the Ethics in Government Act of 1978, as amended
by the Independent Counsel Reauthorization Act of 1994, 28 U. S. C.
§§ 591-599. That holding was reversed by the Court of Appeals and
is not at issue here.
33
particularity a prior awareness that the exhaustive litany of
documents sought in the subpoena existed and were in Hubbell's
possession, then the wide distance evidently traveled from the
subpoena to the substantive allegations contained in the indictment
would be based upon legitimate intermediate steps. To the extent
that the information conveyed through Hubbell's compelled act of
production provides the necessary linkage, however, the indictment
deriving therefrom is tainted." Id., at 581.
In the opinion of the dissenting judge, the majority failed to
give full effect to the distinction between the contents of the
documents and the limited testimonial significance of the act of
producing them. In his view, as long as the prosecutor could make
use of information contained in the documents or derived therefrom
without any reference to the fact that respondent had produced them
in response to a subpoena, there would be no improper use of the
testimonial aspect of the immunized act of production. In other
words, the constitutional privilege and the statute conferring use
immunity would only shield the witness from the use of any
information resulting from his subpoena response "beyond what the
prosecutor would receive if the documents appeared in the grand
jury room or in his office unsolicited and unmarked, like manna
from heaven." 7
Id., at 602.
On remand, the Independent Counsel acknowledged that he could
not satisfy the "reasonable particularity" standard prescribed by
the Court of Appeals and entered into a conditional plea agreement
with respondent. In essence, the agreement provides for the
dismissal of the charges unless this Court's disposition of the
case makes it reasonably likely that respondent's "act [of]
production immunity" would not
7 Over the dissent of four judges, the Court of Appeals denied a
suggestion for rehearing en bane. App. to Pet. for Cert.
142a-143a.
34
pose a significant bar to his prosecution. App. 106-107. The
case is not moot, however, because the agreement also provides for
the entry of a guilty plea and a sentence that will not include
incarceration if we should reverse and issue an opinion that is
sufficiently favorable to the Government to satisfy that condition.
Ibid. Despite that agreement, we granted the Independent
Counsel's petition for a writ of certiorari in order to determine
the precise scope of a grant of immunity with respect to the
production of documents in response to a subpoena. 528 U. S. 926
(1999). We now affirm.
II
It is useful to preface our analysis of the constitutional issue
with a restatement of certain propositions that are not in dispute.
The term "privilege against self-incrimination" is not an entirely
accurate description of a person's constitutional protection
against being "compelled in any criminal case to be a witness
against himself."
The word "witness" in the constitutional text limits the
relevant category of compelled incriminating communications to
those that are "testimonial" in character.8 As Justice Holmes
observed, there is a significant difference between the use of
compulsion to extort communications from a defendant and compelling
a person to engage in conduct
8 "It is consistent with the history of and the policies
underlying the Self-Incrimination Clause to hold that the privilege
may be asserted only to resist compelled explicit or implicit
disclosures of incriminating information. Historically, the
privilege was intended to prevent the use of legal compulsion to
extract from the accused a sworn communication of facts which would
incriminate him. Such was the process of the ecclesiastical courts
and the Star Chamber-the inquisitorial method of putting the
accused upon his oath and compelling him to answer questions
designed to uncover uncharged offenses, without evidence from
another source. See
Andresen v.
Maryland, 427 U. S. 463,470-471
(1976); 8 Wigmore §2250; E. Griswold, The Fifth Amendment Today 2-3
(1955)."
Doe v.
United States, 487 U. S. 201, 212
(1988).
35
that may be incriminating.9 Thus, even though the act may
provide incriminating evidence, a criminal suspect may be compelled
to put on a shirt,lO to provide a blood sample 11 or handwriting
exemplar,12 or to make a recording of his voice.13 The act of
exhibiting such physical characteristics is not the same as a sworn
communication by a witness that relates either express or implied
assertions of fact or belief.
Pennsylvania v.
Muniz,
496 U. S. 582,
594-598 (1990). Similarly, the fact that incriminating evidence may
be the byproduct of obedience to a regulatory requirement, such as
filing an income tax return,14 maintaining required records,15 or
reporting an accident,16 does not clothe such required conduct with
the testimonial privilege.17
More relevant to this case is the settled proposition that a
person may be required to produce specific documents even though
they contain incriminating assertions of fact or belief because the
creation of those documents was not "compelled"
9 "A question arose as to whether a blouse belonged to the
prisoner. A witness testified that the prisoner put it on and it
fitted him. It is objected that he did this under the same duress
that made his statements inadmissible, and that it should be
excluded for the same reasons. But the prohibition of compelling a
man in a criminal court to be witness against himself is a
prohibition of the use of physical or moral compulsion to extort
communications from him, not an exclusion of his body as evidence
when it may be material. The objection in principle would forbid a
jury to look at a prisoner and compare his features with a
photograph in proof."
Holt v.
United States, 218 U. S. 245, 252-253
(1910).
10 Ibid.
11 Schmerber v. California,
384 U. S. 757 (1966).
12 Gilbert v. California,
388 U. S. 263 (1967).
13 United States v. Wade,
388 U. S. 218 (1967).
14 United States v. Sullivan,
274 U. S. 259 (1927).
15 Shapiro v. United States,
335 U. S. 1 (1948).
16 California v.
Byers, 402 U. S. 424 (1971).
17"The Court has on several occasions recognized that the Fifth
Amendment privilege may not be invoked to resist compliance with a
regulatory regime constructed to effect the State's public purposes
unrelated to the enforcement of its criminal laws."
Baltimore
City Dept. of Social Servs. v.
Bouknight, 493 U. S. 549, 556
(1990).
36
within the meaning of the privilege. Our decision in
Fisher v.
United States, 425 U. S. 391 (1976),
dealt with summonses issued by the Internal Revenue Service (IRS)
seeking working papers used in the preparation of tax returns.
Because the papers had been voluntarily prepared prior to the
issuance of the summonses, they could not be "said to contain
compelled testimonial evidence, either of the taxpayers or of
anyone else." Accordingly, the taxpayer could not "avoid compliance
with the subpoena merely by asserting that the item of evidence
which he is required to produce contains incriminating writing,
whether his own or that of someone else."
Id., at 409-410;
see also
United States v.
Doe, 465 U. S. 605
(1984).18 It is clear, therefore, that respondent Hubbell could not
avoid compliance with the subpoena served on him merely because the
demanded documents contained incriminating evidence, whether
written by others or voluntarily prepared by himself.
On the other hand, we have also made it clear that the act of
producing documents in response to a subpoena may have a compelled
testimonial aspect. We have held that "the act of production"
itself may implicitly communicate "statements of fact." By
"producing documents in compliance with a subpoena, the witness
would admit that the papers existed, were in his possession or
control, and were authentic." 19
18 "Respondent does not contend that he prepared the documents
involuntarily or that the subpoena would force him to restate,
repeat, or affirm the truth of their contents. The fact that the
records are in respondent's possession is irrelevant to the
determination of whether the creation of the records was compelled.
We therefore hold that the contents of those records are not
privileged."
United States v.
Doe, 465 U. S., at
611-612 (footnote omitted).
19 "The issue presented in those cases was whether the act of
producing subpoenaed documents, not itself the making of a
statement, might nonetheless have some protected testimonial
aspects. The Court concluded that the act of production could
constitute protected testimonial communication because it might
entail implicit statements of fact: by producing
37
Moreover, as was true in this case, when the custodian of
documents responds to a subpoena, he may be compelled to take the
witness stand and answer questions designed to determine whether he
has produced everything demanded by the subpoena.2o The answers to
those questions, as well as the act of production itself, may
certainly communicate information about the existence, custody, and
authenticity of the documents. Whether the constitutional privilege
protects the answers to such questions, or protects the act of
production itself, is a question that is distinct from the question
whether the unprotected contents of the documents themselves are
incriminating.
Finally, the phrase "in any criminal case" in the text of the
Fifth Amendment might have been read to limit its coverage to
compelled testimony that is used against the defendant in the trial
itself. It has, however, long been settled that its protection
encompasses compelled statements that lead to the discovery of
incriminating evidence even though the statements themselves are
not incriminating and are not introduced into evidence. Thus, a
half century ago we held
documents in compliance with a subpoena, the witness would admit
that the papers existed, were in his possession or control, and
were authentic.
United States v.
Doe, 465 U. S., at
613, and n. 11;
Fisher, 425 U. S., at
409-410; id.,
at 428, 432 (concurring opinions). See
Braswell v.
United
States, [487 U. S.,] at 104;
[id.,] at 122 (dissenting
opinion). Thus, the Court made clear that the Fifth Amendment
privilege against selfincrimination applies to acts that imply
assertions of fact.
" ... An examination of the Court's application of these
principles in other cases indicates the Court's recognition that,
in order to be testimonial, an accused's communication must itself,
explicitly or implicitly, relate a factual assertion or disclose
information. Only then is a person compelled to be a 'witness'
against himself."
Doe v.
United States, 487 U. S., at
209-210 (footnote omitted).
20 See App. 62-70. Thus, for example, after respondent had been
duly sworn by the grand jury foreman, the prosecutor called his
attention to paragraph A of the Subpoena Rider (reproduced in the
Appendix,
infra, at 46) and asked whether he had produced
"all those documents." App. 65.
38
that a trial judge had erroneously rejected a defendant's claim
of privilege on the ground that his answer to the pending question
would not itself constitute evidence of the charged offense. As we
explained:
"The privilege afforded not only extends to answers that would
in themselves support a conviction under a federal criminal statute
but likewise embraces those which would furnish a link in the chain
of evidence needed to prosecute the claimant for a federal crime."
Hoffman v. United States, 341 U. S. 479, 486
(1951).
Compelled testimony that communicates information that may "lead
to incriminating evidence" is privileged even if the information
itself is not inculpatory.
Doe v.
United States,
487 U. S. 201,
208, n. 6 (1988). It is the Fifth Amendment's protection against
the prosecutor's use of incriminating information derived directly
or indirectly from the compelled testimony of the respondent that
is of primary relevance in this case.
III
Acting pursuant to 18 U. S. C. § 6002, the District Court
entered an order compelling respondent to produce "any and all
documents" described in the grand jury subpoena and granting him
"immunity to the extent allowed by law." App. 60-61. In
Kastigar v.
United States, 406 U. S. 441 (1972), we
upheld the constitutionality of § 6002 because the scope of the
"use and derivative-use" immunity that it provides is coextensive
with the scope of the constitutional privilege against
self-incrimination.
The protection against the derivative use of compelled testimony
distinguishes § 6002 from the 1868 statute that had been held
invalid in
Counselman v.
Hitchcock, 142 U. S. 547 (1892),
because it merely provided "use" immunity, as well as from the more
recent federal statutes that broadly provide "transactional"
immunity. In
Kastigar the petitioners argued that, under our
reasoning in
Counselman, nothing less
39
than full transactional immunity from prosecution for any
offense to which compelled testimony relates could suffice to
supplant the privilege. In rejecting that argument, we stressed the
importance of § 6002's "explicit proscription" of the use in any
criminal case of " 'testimony or other information compelled under
the order (or any information directly or indirectly derived from
such testimony or other information).'" 406 U. S., at 453. We
particularly emphasized the critical importance of protection
against a future prosecution "'based on knowledge and sources of
information obtained from the compelled testimony.'"
Id., at
454 (quoting
Ullmann v.
United States, 350 U. S. 422, 437
(1956)).21
We also rejected the petitioners' argument that derivative-use
immunity under § 6002 would not obviate the risk that the
prosecutor or other law enforcement officials may use compelled
testimony to obtain leads, names of witnesses, or other information
not otherwise available to support a prosecution. That argument was
predicated on the incorrect assumption that the derivative-use
prohibition would prove impossible to enforce. But given that the
statute contains a "comprehensive safeguard" in the form of a
"sweeping proscription of any use, direct or indirect, of the
21 "Our holding is consistent with the conceptual basis of
Counselman.
The
Counselman statute, as construed by the Court, was
plainly deficient in its failure to prohibit the use against the
immunized witness of evidence derived from his compelled testimony.
The Court repeatedly emphasized this deficiency, noting that the
statute:
"'could not, and would not, prevent the use of his testimony to
search out other testimony to be used in evidence against him or
his property, in a criminal proceeding .. .' 142 U. S., at 564;
"and that it:
"'affords no protection against that use of compelled testimony
which consists in gaining therefrom a knowledge of the details of a
crime, and of sources of information which may supply other means
of convicting the witness or party.' 142 U. S., at 586."
Kastigar v.
United States, 406 U. S., at 453-454.
40
compelled testimony and any information derived therefrom," we
concluded that a person who is prosecuted for matters related to
testimony he gave under a grant of immunity does not have the
burden of proving that his testimony was improperly used. Instead,
we held that the statute imposes an affirmative duty on the
prosecution, not merely to show that its evidence is not tainted by
the prior testimony, but "to prove that the evidence it proposes to
use is derived from a legitimate source wholly independent of the
compelled testimony."
Id., at 460.22 Requiring the
prosecution to shoulder this burden ensures that the grant of
immunity has "le[ft] the witness and the Federal Government in
substantially the same position as if the witness had claimed his
privilege in the absence of a grant of immunity."
Id., at
458-459 (internal quotation marks and footnote omitted).
The "compelled testimony" that is relevant in this case is not
to be found in the contents of the documents produced in response
to the subpoena. It is, rather, the testimony inherent in the act
of producing those documents. The disagreement between the parties
focuses entirely on the significance of that testimonial
aspect.
IV
The Government correctly emphasizes that the testimonial aspect
of a response to a subpoena
duces tecum does nothing
22 "A person accorded this immunity under 18 U. S. C. § 6002,
and subsequently prosecuted, is not dependent for the preservation
of his rights upon the integrity and good faith of the prosecuting
authorities. As stated in
Murphy [v.
Waterfront Comm'n of
N Y.
Harbor, 378 U. S. 52 (1964)]:
"'Once a defendant demonstrates that he has testified, under a
state grant of immunity, to matters related to the federal
prosecution, the federal authorities have the burden of showing
that their evidence is not tainted by establishing that they had an
independent, legitimate source for the disputed evidence.'
[Id.,] at 79 n. 18.
"This burden of proof, which we reaffirm as appropriate, is not
limited to a negation of taint; rather, it imposes on the
prosecution the affirmative duty to prove that the evidence it
proposes to use is derived from a legitimate source wholly
independent of the compelled testimony."
Id., at 460.
41
more than establish the existence, authenticity, and custody of
items that are produced. We assume that the Government is also
entirely correct in its submission that it would not have to advert
to respondent's act of production in order to prove the existence,
authenticity, or custody of any documents that it might offer in
evidence at a criminal trial; indeed, the Government disclaims any
need to introduce any of the documents produced by respondent into
evidence in order to prove the charges against him. It follows,
according to the Government, that it has no intention of making
improper "use" of respondent's compelled testimony.
The question, however, is not whether the response to the
subpoena may be introduced into evidence at his criminal trial.
That would surely be a prohibited "use" of the immunized act of
production. See
In re Sealed Case, 791
F.2d 179, 182
(CADC 1986) (Scalia, J.). But the fact
that the Government intends no such use of the act of production
leaves open the separate question whether it has already made
"derivative use" of the testimonial aspect of that act in obtaining
the indictment against respondent and in preparing its case for
trial. It clearly has.
It is apparent from the text of the subpoena itself that the
prosecutor needed respondent's assistance both to identify
potential sources of information and to produce those sources. See
Appendix,
infra. Given the breadth of the description of the
11 categories of documents called for by the subpoena, the
collection and production of the materials demanded was tantamount
to answering a series of interrogatories asking a witness to
disclose the existence and location of particular documents fitting
certain broad descriptions. The assembly of literally hundreds of
pages of material in response to a request for "any and all
documents reflecting, referring, or relating to any direct or
indirect sources of money or other things of value received by or
provided to" an individual or members of his family during a 3-year
period, Appendix,
infra, at 46-49, is the functional
equivalent of the preparation of an answer to either a detailed
written
42
interrogatory or a series of oral questions at a discovery
deposition. Entirely apart from the contents of the 13,120 pages of
materials that respondent produced in this case, it is undeniable
that providing a catalog of existing documents fitting within any
of the 11 broadly worded subpoena categories could provide a
prosecutor with a "lead to incriminating evidence," or "a link in
the chain of evidence needed to prosecute."
Indeed, the record makes it clear that that is what happened in
this case. The documents were produced before a grand jury sitting
in the Eastern District of Arkansas in aid of the Independent
Counsel's attempt to determine whether respondent had violated a
commitment in his first plea agreement. The use of those sources of
information eventually led to the return of an indictment by a
grand jury sitting in the District of Columbia for offenses that
apparently are unrelated to that plea agreement. What the District
Court characterized as a "fishing expedition" did produce a fish,
but not the one that the Independent Counsel expected to hook. It
is abundantly clear that the testimonial aspect of respondent's act
of producing subpoenaed documents was the first step in a chain of
evidence that led to this prosecution. The documents did not
magically appear in the prosecutor's office like "manna from
heaven." They arrived there only after respondent asserted his
constitutional privilege, received a grant of immunity, and-under
the compulsion of the District Court's order-took the mental and
physical steps necessary to provide the prosecutor with an accurate
inventory of the many sources of potentially incriminating evidence
sought by the subpoena. It was only through respondent's truthful
reply to the subpoena 23 that the Government re-
23 See Stuntz, Self-incrimination and Excuse, 88 Colum. L. Rev.
1227, 1228-1229, 1256-1259, 1277-1279 (1988) (discussing the
conceptual link between truthtelling and the privilege in the
document production context); Alito, Documents and the Privilege
Against Self-Incrimination, 48 U. Pitt. L. Rev. 27, 47 (1986); 8 J.
Wigmore, Evidence §2264, p. 379 (J. McNaugh-
43
ceived the incriminating documents of which it made "substantial
use ... in the investigation that led to the indictment." Brief for
United States 3.
For these reasons, we cannot accept the Government's submission
that respondent's immunity did not preclude its derivative use of
the produced documents because its "possession of the documents
[was] the fruit
only of a simple physical act-the act of
producing the documents."
Id., at 29. It was unquestionably
necessary for respondent to make extensive use of "the contents of
his own mind" in identifying the hundreds of documents responsive
to the requests in the subpoena. See
Curcio v.
United
States, 354 U. S. 118, 128 (1957);
Doe v.
United
States, 487 U. S., at 210. The assembly of those documents was
like telling an inquisitor the combination to a wall safe, not like
being forced to surrender the key to a strongbox.
Id., at
210, n. 9. The Government's anemic view of respondent's act of
production as a mere physical act that is principally
nontestimonial in character and can be entirely divorced from its
"implicit" testimonial aspect so as to constitute a "legitimate,
wholly independent source" (as required by
Kastigar) for the
documents produced simply fails to account for these realities.
In sum, we have no doubt that the constitutional privilege
against self-incrimination protects the target of a grand jury
investigation from being compelled to answer questions designed to
elicit information about the existence of sources of potentially
incriminating evidence. That constitutional privilege has the same
application to the testimonial aspect of a response to a subpoena
seeking discovery of those sources. Before the District Court, the
Government arguably conceded that respondent's act of production in
this case had a testimonial aspect that entitled him to respond to
the subpoena by asserting his privilege against self-incrimination.
See 167 F. 3d, at 580 (noting District
ton rev. 1961) (describing a subpoena
duces tecum as
"process relying on [the witness'] moral responsibility for
truthtelling").
44
Court's finding that "Hubbell's compelled act of production
required him to make communications as to the existence,
possession, and authenticity of the subpoenaed documents"). On
appeal and again before this Court, however, the Government has
argued that the communicative aspect of respondent's act of
producing ordinary business records is insufficiently "testimonial"
to support a claim of privilege because the existence and
possession of such records by any businessman is a "foregone
conclusion" under our decision in
Fisher v.
United
States, 425 U. S., at 411. This argument both misreads
Fisher and ignores our subsequent decision in
United
States v.
Doe, 465 U. S. 605 (1984).
As noted in Part II,
supra, Fisher involved summonses
seeking production of working papers prepared by the taxpayers'
accountants that the IRS knew were in the possession of the
taxpayers' attorneys. 425 U. S., at 394. In rejecting the
taxpayers' claim that these documents were protected by the Fifth
Amendment privilege, we stated:
"It is doubtful that implicitly admitting the existence and
possession of the papers rises to the level of testimony within the
protection of the Fifth Amendment. The papers belong to the
accountant, were prepared by him, and are the kind usually
prepared by an accountant working on the tax returns of his client.
Surely the Government is in no way relying on the 'truthtelling' of
the taxpayer to prove the existence of or his access to the
documents .... The existence and location of the papers are a
foregone conclusion and the taxpayer adds little or nothing to the
sum total of the Government's information by conceding that he in
fact has the papers." Id., at 411 (emphases added).
Whatever the scope of this "foregone conclusion" rationale, the
facts of this case plainly fall outside of it. While in
Fisher the Government already knew that the documents were
in the attorneys' possession and could independently
45
confirm their existence and authenticity through the accountants
who created them, here the Government has not shown that it had any
prior knowledge of either the existence or the whereabouts of the
13,120 pages of documents ultimately produced by respondent. The
Government cannot cure this deficiency through the overbroad
argument that a businessman such as respondent will always possess
general business and tax records that fall within the broad
categories described in this subpoena. The
Doe subpoenas
also sought several broad categories of general business records,
yet we upheld the District Court's finding that the act of
producing those records would involve testimonial
self-incrimination. 465 U. S., at 612-614, and n. 13.
Given our conclusion that respondent's act of production had a
testimonial aspect, at least with respect to the existence and
location of the documents sought by the Government's subpoena,
respondent could not be compelled to produce those documents
without first receiving a grant of immunity under § 6003. As we
construed § 6002 in
Kastigar, such immunity is coextensive
with the constitutional privilege.
Kastigar requires that
respondent's motion to dismiss the indictment on immunity grounds
be granted unless the Government proves that the evidence it used
in obtaining the indictment and proposed to use at trial was
derived from legitimate sources "wholly independent" of the
testimonial aspect of respondent's immunized conduct in assembling
and producing the documents described in the subpoena. The
Government, however, does not claim that it could make such a
showing. Rather, it contends that its prosecution of respondent
must be considered proper unless someone-presumably
respondent-shows that "there is some substantial relation between
the compelled testimonial communications implicit in the act of
production (as opposed to the act of production standing alone) and
some aspect of the information used in the investigation or the
evidence presented at trial." Brief for United States 9. We could
not accept
46
Appendix to opinion of the Court
this submission without repudiating the basis for our conclusion
in
Kastigar that the statutory guarantee of use and
derivative-use immunity is as broad as the constitutional privilege
itself. This we are not prepared to do.
Accordingly, the indictment against respondent must be
dismissed. The judgment of the Court of Appeals is affirmed.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
On October 31, 1996, upon application by the Independent
Counsel, a subpoena was issued commanding respondent to appear and
testify before the grand jury of the United States District Court
for the Eastern District of Arkansas on November 19, 1996, and to
bring with him various documents described in a "Subpoena Rider" as
follows:
"A. Any and all documents reflecting, referring, or relating to
any direct or indirect sources of money or other things of value
received by or provided to Webster Hubbell, his wife, or children
from January 1, 1993 to the present, including but not limited to
the identity of employers or clients of legal or any other type of
work.
"E. Any and all documents reflecting, referring, or relating to
any direct or indirect sources of money of other things of value
received by or provided to Webster Hubbell, his wife, or children
from January 1, 1993 to the present, including but not limited to
billing memoranda, draft statements, bills, final statements,
and/or bills for work performed or time billed from January 1, 1993
to the present.
"C. Copies of all bank records of Webster Hubbell, his
wife, or children for all accounts from January 1, 1993 to the
present, including but not limited to all statements, registers and
ledgers, cancelled checks, deposit items, and wire transfers.
"D. Any and all documents reflecting, referring, or relating to
time worked or billed by Webster Hubbell from
47
January 1, 1993 to the present, including but not limited to
original time sheets, books, notes, papers, and/or computer
records.
"E. Any and all documents reflecting, referring, or relating to
expenses incurred by and/or disbursements of money by Webster
Hubbell during the course of any work performed or to be performed
by Mr. Hubbell from January 1, 1993 to the present.
"F. Any and all documents reflecting, referring, or relating to
Webster Hubbell's schedule of activities, including but not limited
to any and all calendars, day-timers, time books, appointment
books, diaries, records of reverse telephone toll calls, credit
card calls, telephone message slips, logs, other telephone records,
minutes, databases, electronic mail messages, travel records,
itineraries, tickets for transportation of any kind, payments,
bills, expense backup documentation, schedules, and/or any other
document or database that would disclose Webster Hubbell's
activities from January 1, 1993 to the present.
"G. Any and all documents reflecting, referring, or relating to
any retainer agreements or contracts for employment of Webster
Hubbell, his wife, or his children from J anuary 1, 1993 to the
present.
"H. Any and all tax returns and tax return information,
including but not limited to all W-2s, form 1099s, schedules, draft
returns, work papers, and backup documents filed, created or held
by or on behalf of Webster Hubbell, his wife, his children, and/or
any business in which he, his wife, or his children holds or has
held an interest, for the tax years 1993 to the present.
"I. Any and all documents reflecting, referring, or relating to
work performed or to be performed or on behalf of the City of Los
Angeles, California, the Los Angeles Department of Airports or any
other Los Angeles municipal Governmental entity, Mary Leslie,
and/or Alan S. Arkatov, including but not limited to
correspondence, retainer agree-
48
Appendix to opinion of the Court
ments, contracts, time sheets, appointment calendars, activity
calendars, diaries, billing statements, billing memoranda,
telephone records, telephone message slips, telephone credit card
statements, itineraries, tickets for transportation, payment
records, expense receipts, ledgers, check registers, notes,
memoranda, electronic mail, bank deposit items, cashier's checks,
traveler's checks, wire transfer records and/or other records of
financial transactions.
"J. Any and all documents reflecting, referring, or relating to
work performed or to be performed by Webster Hubbell, his wife, or
his children on the recommendation, counselor other influence of
Mary Leslie and/or Alan S. Arkatov, including but not limited to
correspondence, retainer agreements, contracts, time sheets,
appointment calendars, activity calendars, diaries, billing
statements, billing memoranda, telephone records, telephone message
slips, telephone credit card statements, itineraries, tickets for
transportation, payment records, expense receipts, ledgers, check
registers, notes, memoranda, electronic mail, bank deposit items,
cashier's checks, traveler's checks, wire transfer records and/or
other records of financial transactions.
"K. Any and all documents related to work performed or to be
performed for or on behalf of Lippo Ltd. (formerly Public Finance
(H. K.) Ltd.), the Lippo Group, the Lippo Bank, Mochtar Riady,
James Riady, Stephen Riady, John Luen Wai Lee, John Huang, Mark W.
Grobmyer, C. Joseph Giroir, Jr., or any affiliate, subsidiary, or
corporation owned or controlled by or related to the aforementioned
entities or individuals, including but not limited to
correspondence, retainer agreements, contracts, time sheets,
appointment calendars, activity calendars, diaries, billing
statements, billing memoranda, telephone records, telephone message
slips, telephone credit card statements, itineraries, tickets for
transportation, payment records, expense receipts, ledgers, check
registers, notes, memoranda, electronic mail, bank
49
deposit items, cashier's checks, traveler's checks, wire
transfer records and/or other records of financial transactions."
App.47-49.
CHIEF JUSTICE REHNQUIST dissents and would reverse the judgment
of the Court of Appeals in part, for the reasons given by Judge
Williams in his dissenting opinion in that court,
167 F.3d
552, 597 (CADC 1999).
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, concurring.
Our decision today involves the application of the
actof-production doctrine, which provides that persons compelled to
turn over incriminating papers or other physical evidence pursuant
to a subpoena
duces tecum or a summons may invoke the Fifth
Amendment privilege against self-incrimination as a bar to
production only where the act of producing the evidence would
contain "testimonial" features. See
ante, at 34-38. I join
the opinion of the Court because it properly applies this doctrine,
but I write separately to note that this doctrine may be
inconsistent with the original meaning of the Fifth Amendment's
SelfIncrimination Clause. A substantial body of evidence suggests
that the Fifth Amendment privilege protects against the compelled
production not just of incriminating testimony, but of any
incriminating evidence. In a future case, I would be willing to
reconsider the scope and meaning of the SelfIncrimination
Clause.
I
The Fifth Amendment provides that "[n]o person ... shall be
compelled in any criminal case to be a witness against himself."
The key word at issue in this case is "witness." The Court's
opinion, relying on prior cases, essentially defines "witness" as a
person who provides testimony, and thus restricts the Fifth
Amendment's ban to only those com-
50
munications "that are 'testimonial' in character."
Ante,
at 34. None of this Court's cases, however, has undertaken an
analysis of the meaning of the term at the time of the founding. A
review of that period reveals substantial support for the view that
the term "witness" meant a person who gives or furnishes evidence,
a broader meaning than that which our case law currently ascribes
to the term. If this is so, a person who responds to a subpoena
duces tecum would be just as much a "witness" as a person
who responds to a subpoena
ad testificandum.1
Dictionaries published around the time of the founding included
definitions of the term "witness" as a person who gives or
furnishes evidence. Legal dictionaries of that period defined
"witness" as someone who "gives evidence in a cause." 2 G. Jacob, A
New Law-Dictionary (8th ed. 1762); 2 T. Cunningham, New and
Complete Law-Dictionary (2d ed. 1771); T. Potts, A Compendious Law
Dictionary 612 (1803); 6 G. Jacob, The Law-Dictionary 450 (T.
Tomlins 1st American ed. 1811). And a general dictionary published
earlier in the century similarly defined "witness" as "a giver of
evidence." J. Kersey, A New English Dictionary (1702). The term
"witness" apparently continued to have this meaning at least until
the first edition of Noah Webster's dictionary, which defined it as
"[t]hat which furnishes evidence or proof." An American Dictionary
of the English Language (1828). See also J. Story, Commentaries on
the Constitution of the United States § 931 (1833) (using phrases
"to give evidence" and "to furnish evidence" in explanation of the
SelfIncrimination Clause). See generally Nagareda, Compul-
1 Even if the term "witness" in the Fifth Amendment referred to
someone who provides testimony, as this Court's recent cases
suggest without historical analysis, it may well be that at the
time of the founding a person who turned over documents would be
described as providing testimony. See
Amey v.
Long, 9
East. 472, 484, 103 Eng. Rep. 653, 658 (K. B. 1808) (referring to
documents requested by subpoenas
duces tecum as "written ...
testimony").
51
sion "to be a witness" and the Resurrection of
Boyd, 74
N. Y. U. L. Rev. 1575, 1608-1609 (1999).2
Such a meaning of "witness" is consistent with, and may help
explain, the history and framing of the Fifth Amendment. The
18th-century common-law privilege against self-incrimination
protected against the compelled production of incriminating
physical evidence such as papers and documents. See Morgan, The
Privilege against SelfIncrimination, 34 Minn. L. Rev. 1, 34 (1949);
Nagareda,
supra, at 1618-1623. Several 18th-century cases
explicitly recognized such a self-incrimination privilege. See
Roe v.
Harvey, 4 Burr. 2484, 2489, 98 Eng. Rep. 302,
305 (K. B.
1769); King v.
Purnell, 1 Black. 37, 42,
96 Eng. Rep. 20, 23 (K. B. 1748);
King v.
Cornelius,
2 Str. 1210, 1211, 93 Eng. Rep. 1133, 1134 (K. B. 1744);
Queen v.
Mead, 2 LD. Raym. 927, 92 Eng. Rep. 119 (K.
B. 1703);
King v.
Worsenham, 1 LD. Raym. 705, 91 Eng.
Rep. 1370 (K. B. 1701). And this Court has noted that, for
generations before the framing, "one cardinal rule of the court of
chancery [wa]s never to decree a discovery which might tend to
convict the party of a crime."
Boyd v.
United States,
116 U. S. 616,
631 (1886). See also
Counselman v.
Hitchcock,
142 U. S. 547,
563-564 (1892) ("It is an ancient principle of the law of evidence,
that a witness shall not be compelled, in any proceeding, to
make
2 Further, it appears that the phrases "gives evidence" and
"furnishes evidence" were not simply descriptions of the act of
providing testimony. For example, in
King v.
Purnell,
1 Black. 37, 96 Eng. Rep. 20 (K. B. 1748), the phrase "furnish
evidence" is repeatedly used to refer to the compelled production
of books, records, and archives in response to a government
request.
Id., at 40, 41, 42, 96 Eng. Rep., at 21, 22, 23.
See also,
e. g., King v.
Cornelius, 2 Str. 1210,
1211, 93 Eng. Rep. 1133, 1134 (K. B. 1744) (compelling discovery of
books "is in effect obliging a defendant ... to furnish evidence
against himself"); 1 T. Cunningham, New and Complete Law-Dictionary
(2d ed. 1771) (evidence "signifies generally all proof, be it
testimony of men, records or writings"); 1 G. Jacob, The
LawDictionary (T. Tomlins ed. 1797) (defining "evidence" as
"[p]roof by testimony of witnesses, on oath; or by writings or
records").
52
disclosures or to give testimony which will tend to criminate
him or subject him to fines, penalties or forfeitures").
Against this common-law backdrop, the privilege against
self-incrimination was enshrined in the Virginia Declaration of
Rights in 1776. See Moglen, The Privilege in British North America:
The Colonial Period to the Fifth Amendment, in The Privilege
against Self-Incrimination:
Its Origins and Development 133-134 (R. Helmholz et al. eds.
1997). That document provided that no one may "be compelled to give
evidence against himself." Virginia Declaration of Rights § 8
(1776), in 1 The Bill of Rights: A Documentary History 235 (B.
Schwartz ed. 1971). Following Virginia's lead, seven of the other
original States included specific provisions in their Constitutions
granting a right against compulsion "to give evidence" or "to
furnish evidence." See Pennsylvania Declaration of Rights, Art. IX
(1776) ("give"),
id., at 265; Delaware Declaration of Rights
§ 15 (1776) ("give"),
id., at 278; Maryland Declaration of
Rights, Art. XX (1776) ("give"),
id., at 282; North Carolina
Declaration of Rights, Art. VII (1776) ("give"),
id., at
287; Vermont Declaration of Rights, Ch. I, Art. X (1777) ("give"),
id., at 323; Massachusetts Declaration of Rights, Pt. 1,
Art. XII (1780) ("furnish"),
id., at 342; New Hampshire Bill
of Rights, Art. XV (1783) ("furnish"),
id., at 377. And
during ratification of the Federal Constitution, the four States
that proposed bills of rights put forward draft proposals employing
similar wording for a federal constitutional provision guaranteeing
the right against compelled self-incrimination. Each of the
proposals broadly sought to protect a citizen from "be[ing]
compelled to give evidence against himself." Virginia Proposal
(June 27, 1788), 2
id., at 841; New York Proposed Amendments
(July 26, 1788),
id., at 913; North Carolina Proposed
Declaration of Rights (Aug. 1, 1788),
id., at 967; Rhode
Island Proposal (May 29, 1790) (same suggestion made following the
drafting of the Fifth Amendment), in N. Cogan, The Complete Bill of
Rights 327 (1997). See also,
53
e. g., The Address and Reasons of Dissent of the
Minority of the Convention of the State of Pennsylvania to Their
Constituents (Dec. 13, 1787) (same suggestion), in 2 Schwartz,
supra, at 665; 2 Debates on the Federal Constitution 111 (J.
Elliot 2d ed. 1854) (Mr. Holmes, Mass., Jan. 30, 1788) (objecting
that nothing prohibits compelling a person "to furnish evidence
against himself"). Similarly worded proposals to protect against
compelling a person "to furnish evidence" against himself came from
prominent voices outside the conventions. See The Federal Farmer
No.6 (1787), in Cogan,
supra, at 333; Letter of Brutus, No.2
(1788), in 1 Schwartz,
supra, at 508.
In response to such calls, James Madison penned the Fifth
Amendment. In so doing, Madison substituted the phrase "to be a
witness" for the proposed language "to give evidence" and "to
furnish evidence." But it seems likely that Madison's phrasing was
synonymous with that of the proposals. The definitions of the word
"witness" and the background history of the privilege against
self-incrimination, both discussed above, support this view. And
this may explain why Madison's unique phrasing-phrasing that none
of the proposals had suggested-apparently attracted no attention,
much less opposition, in Congress, the state legislatures that
ratified the Bill of Rights, or anywhere else. See 3 W. LaFave, J.
Israel, & N. King, Criminal Procedure 290-291 (2d ed. 1999). In
fact, the only Member of the First Congress to address
self-incrimination during the debates on the Bill of Rights treated
the phrases as synonymous, restating Madison's formulation as a ban
on forcing one "to give evidence against himself." 1 Annals of
Congo 753-754 (J. Gales ed. 1834) (statement of Rep.
Laurance).3
3 Representative Laurance was no stranger to the
Self-Incrimination Clause; he was responsible for the limiting
phrase "in any criminal case," which was added to the Clause
without any recorded opposition. See L. Levy, Origins of the Fifth
Amendment, The Right Against SelfIncrimination 424-427 (1968). In
support of this suggestion, Laurance
54
In addition, a broad definition of the term "witness"one who
gives evidence-is consistent with the same term (albeit in plural
form) in the Sixth Amendment's Compulsory Process Clause.4 That
Clause provides that "[i]n all criminal prosecutions, the accused
shall enjoy the right ... to have compulsory process for obtaining
witnesses in his favor." Soon after the adoption of the Bill of
Rights, Chief Justice Marshall had occasion to interpret the
Compulsory Process Clause while presiding over the treason trial of
Aaron Burr.
United States v.
Burr, 25 F. Cas. 30 (No.
14,692d)
(CC Va. 1807). Burr moved for the issuance of a
subpoena
duces tecum to obtain from President Jefferson a
letter that was said to incriminate Burr. The Government objected,
arguing that compulsory process under the Sixth Amendment permits a
defendant to secure a sub-
noted that, absent such a restriction, the Fifth Amendment was
"a general declaration, in some degree contrary to laws passed." 1
Annals of Congo 753 (J. Gales ed. 1834). Two prominent commentators
have suggested that "laws passed" likely refers to § 15 of the
Judiciary Act of 1789 (then in the process of passage). See Levy,
supra, at 425-426; Moglen, The Privilege in British North
America: The Colonial Period to the Fifth Amendment, in The
Privilege against Self-Incrimination: Its Origins and Development
258, n. 109 (R. Helmholz et al. eds. 1997). Section 15 provided
that federal courts "shall have power in the trial of actions at
law ... to require the parties to produce books or writings in
their possession or power, which contain evidence pertinent to the
issue, in cases and under circumstances where they might be
compelled to produce the same by the ordinary rules of proceeding
in chancery." Judiciary Act of 1789, 1 Stat. 82. Section 15's grant
of power to compel discovery in civil cases would have been
inconsistent with an unrestricted Self-Incrimination Clause, but
only if the term "witness" in that Clause included persons who
provide such physical evidence as "books" and "writings."
Laurance's assertion thus suggests that the Framers believed the
Self-Incrimination Clause offered protection against such compelled
production.
4 A broad view of the term "witness" in the compulsory process
context dates back at least to the beginning of the 18th century.
See Act of May 31, 1718, ch. 236, § 4, 1 Laws of Pennsylvania 112
(J. Bioren ed. 1810) (speaking of witnesses "be[ing] admitted to
[be] depose[d],
or give any manner of evidence" (emphasis
added)).
55
poena
ad testificandum, but not a subpoena
duces
tecum. Id., at 34. The Chief Justice dismissed the argument,
holding that the right to compulsory process includes the right to
secure papers-in addition to testimony-material to the defense.
Id., at 34-35. This Court has subsequently expressed
agreement with this view of the Sixth Amendment. See
United
States v.
Nixon, 418 U. S. 683, 711
(1974). Although none of our opinions has focused upon the precise
language or history of the Compulsory Process Clause, a narrow
definition of the term "witness" as a person who testifies seems
incompatible with
Burr's holding. And if the term
"witnesses" in the Compulsory Process Clause has an encompassing
meaning, this provides reason to believe that the term "witness" in
the Self-Incrimination Clause has the same broad meaning. Yet this
Court's recent Fifth Amendment act-of-production cases implicitly
rest upon an assumption that this term has different meanings in
adjoining provisions of the Bill of Rights.5
II
This Court has not always taken the approach to the Fifth
Amendment that we follow today. The first case interpreting the
Self-Incrimination
Clause-Boyd v.
United Stateswas
decided, though not explicitly, in accordance with the
understanding that "witness" means one who gives evidence. In
Boyd, this Court unanimously held that the Fifth Amendment
protects a defendant against compelled production of books and
papers. 116 U. S., at 634-635;
id., at 638-639 (Miller, J.,
concurring in judgment). And the Court linked its interpretation of
the Fifth Amendment to the common-
5 Accepting the definition of "witness" as one who gives or
furnishes evidence would also be compatible with my previous call
for a reconsideration of the phrase "witnesses against him" in the
Confrontation Clause of the Sixth Amendment. See
White v.
Illinois, 502
U. S. 346, 365 (1992) (opinion concurring in part and
concurring in judgment).
56
law understanding of the self-incrimination privilege.
Id., at 631-632.
But this Court's decision in
Fisher v.
United States,
425 U. S. 391 (1976), rejected this understanding, permitting
the Government to force a person to furnish incriminating physical
evidence and protecting only the "testimonial" aspects of that
transfer.
Id., at 408. In so doing,
Fisher not only
failed to examine the historical backdrop to the Fifth Amendment,
it also required-as illustrated by extended discussion in the
opinions below in this case-a difficult parsing of the act of
responding to a subpoena
duces tecum.
None of the parties in this case has asked us to depart from
Fisher, but in light of the historical evidence that the
Self-Incrimination Clause may have a broader reach than
Fisher holds, I remain open to a reconsideration of that
decision and its progeny in a proper case.6
6 To hold that the Government may not compel a person to produce
incriminating evidence (absent an appropriate grant of immunity)
does not necessarily answer the question whether (and, if so, when)
the Government may secure that same evidence through a search or
seizure. The lawfulness of such actions, however, would be measured
by the Fourth Amendment rather than the Fifth.
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