Order Code RL32184
CRS Report for Congress
Received through the CRS Web
Supreme Court Recognition
of Fifth Amendment Protection
for Acts of Production
January 2, 2004
American Law Division
Congressional Research Service ˜ The Library of Congress
Supreme Court Recognition of Fifth Amendment
Protection for Acts of Production
On several occasions the Supreme Court has addressed the question of when
Fifth Amendment privilege against self-incrimination applies to the act of responding
to a government subpoena or other command. Beginning with Schmerber and
Fisher, through Doe, and finishing with Hubbell, the Court has declared that acts of
production may fall within the privilege when they are personal, compelled,
incriminating, testimonial communications.
The act of production doctrine is easily misunderstood, but some of the
uncertainty can be dissipated by a close examination of the facts and views of the
Court in the cases where the issue has arisen. The cases reveal that: An act of
production is not privileged when it is done voluntarily. It is not privileged to the
extent that it involves sample-taking from an individual rather than some act which
requires the individual to exercise his cognitive faculties. It is not privileged to the
extent that the act is performed as representatives of a corporation or other collective
entity. It does not preclude disclosures required for participation in a regulatory
The cases also explain that an act of production may be privileged as a
testimonial communication when, with respect to the items sought, it implicitly
concedes their existence, identifies them, evidences possession of or control over
them, discloses their location, or vouches for their authenticity. The two cases where
the privilege was successfully claimed involved general, sweeping demands,
characterized by the courts as governmental fishing expeditions, that made the
individual to whom they were addressed a strong, and perhaps even indispensable
witness against himself. Both cases involved sweeping subpoenas which demanded
that the individuals engage in the mental exercise of identifying, collecting, and
organizing documents that incriminated them or that led to incriminating evidence
This report is available in an abridged form without its footnotes as CRS Report
RS21701, A Sketch of Supreme Court Recognition of Fifth Amendment Protection
for Acts of Production.
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Schmerber and Fisher . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Schmerber . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Fisher . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Doe (I): The Privilege Applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
When the Privilege Does Not Apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Braswell: Collective Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Doe (II): Consent Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Bouknight: Required Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Hubbell: A Second Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Supreme Court Recognition of Fifth
Amendment Protection for Acts of
The Fifth Amendment to the United States Constitution declares in pertinent
part that, “No person . . . shall be compelled in any criminal case to be a witness
against himself.” The United States Supreme Court has pointed that acts of
production may fall within of the Fifth Amendment privilege against selfincrimination under some circumstances. To do so they must satisfy the privilege’s
general demands that require a (1) personal, (2) governmentally compelled, (3)
incriminating, (4) testimonial, (5) communication.
The act of production doctrine is easily misunderstood for a number reasons.
First, the protected communication is most often implicit. The privilege covers an
individual’s actions rather than his speech or writing, yet many incriminating actions
such as providing a blood sample or a handwriting sample are ordinarily not
protected because they are not testimonial. Second, no bright line divides
communications that are testimonial from those that are not. Third, the privilege
sometimes protects the act of producing existing documents which by themselves are
not protected because they were originally prepared voluntarily. Fourth, the privilege
protects not only intrinsically incriminating communications but also those that form
a link in the chain of incrimination. Some of the uncertainty can be dissipated by a
close examination of the facts and views of the Court in the cases where the issue has
Schmerber and Fisher
The act of production doctrine first comes into focus in two cases in which the
Court rejected its application, Schmerber v. California, 384 U.S. 757 (1966), and
Fisher v. United States, 425 U.S. 391 (1976). Schmerber is a blood alcohol case.
Schmerber had claimed a privilege against self-incrimination in an effort to bar the
results of his blood alcohol test, conducted over his objections, following a serious
The Court was unconvinced. It repeated Justice Holmes’ reminder that “the
prohibition of compelling a man in a criminal court to be a 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 is material,” 384 U.S. at
763, quoting, Holt v. United States, 218 U.S. 245, 252-53 (1910). Schmerber’s claim
was fatally defective, “since the blood test evidence, although an incriminating
product of compulsion, was neither [Schmerber’s] testimony nor evidence relating
to some communicative act or writing by [him],” 384 U.S. at 765 (emphasis added).
Although no more beneficial to its claimants, the act of production doctrine
became clearer with Fisher. Fisher invoked the privilege in response to an Internal
Revenue Service demand served on his attorney for documents prepared by Fisher's
accountant. The accountant’s papers had been prepared voluntarily and consequently
lacked the element of government coercion required for application of the privilege.
The content of the papers aside, the “act of producing evidence in response to a
subpoena nevertheless has communicative aspects of its own,” the Court pointed out.
“Compliance with the subpoena tacitly concedes the existence of the papers
demanded and their possession or control by the taxpayer. It also would indicate the
taxpayer's belief that the papers are those described in the subpoena,” 425 U.S. at
Unfortunately for Fisher his act of production came up short on two other
elements. It was neither incriminating nor testimonial. Implicit assertions of the
existence and control of accountant's papers relating to one’s taxes are by themselves
hardly self-criminating. For, “surely it is not illegal to seek accounting help in
connection with one’s tax returns or for the accountant to prepare workpapers and
deliver to the taxpayer,” 425 U.S. at 412. Neither did the Court consider Fisher
criminally imperilled by any implicit authentication of the papers. For, “production
would express nothing more than the taxpayer’s belief that the papers are those
described in the subpoena. . . . The taxpayer did not prepare the papers and could not
vouch for their accuracy. The documents would not be admissible against the
taxpayer without authenticating testimony.” 425 U.S. at 412-13.
In Fisher and elsewhere, the testimonial element turns on whether production
asserts the existence, control or authentication of an item and on the extent to which
an individual's implicit evidentiary assertion relieves the prosecution of burden it
might otherwise find difficult to bear. In Fisher, the Court considered “[i]t doubtful
that implicitly admitting the existence and possession of the papers rises to the level
of testimony within the protection of the Fifth Amendment. . . . Surely, the
Government is in no way relying on the ‘truth-telling’ of the taxpayer to prove the
existence of or his access to the documents. 8 Wigmore §2264, p.380. 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,” 425 U.S. at 412-13.1
Dean Wigmore had written that, “the production of documents or chattels by a person
(whether ordinary witness or party witness) in response to a subpoena, or to a motion to
order production, or to other forms of process relying on his moral responsibility for
truthtelling, may be refused under the protection of the privilege. This is universally
conceded. For though the documents or chattels thus sought be not oral in form, and though
they be already in existence and not desired to be first written and created by a testimonial
act or utterance of the person in response to process, still there is a testimonial disclosure
implicit in their production. It is the witness’ assurance, compelled as an incident of the
process, that the articles produced are the ones demanded. No meaningful distinction can
Fisher’s authentication argument proved no more robust. As the Court observed
in the context of the incrimination element, Fisher “did not prepare the papers and
could not vouch for their accuracy. The documents would not be admissible against
[him] without [independent] authenticating testimony.” 425 U.S. at 413.
Doe (I): The Privilege Applies
Finally in United States v. Doe (Doe I), 465 U.S. 605 (1984), the Court
encountered a case where the act of production doctrine was appropriately claimed.
A federal grand jury investigating possible corruption relating to municipal contracts
served a sweeping series of five subpoenas upon Doe demanding production of
business records of five sole proprietorships under which Doe apparently did
business.2 The lower courts held that Doe’s privilege against self-incrimination
shielded him from punishment for failure to produce the subpoenaed documents.
The trial court declared that, “With few exceptions, enforcement of the subpoenas
be drawn between a communication necessarily implied by legally compelled conduct and
one authenticating the articles expressly made under compulsion in court. Testimonial acts
of this sort – authenticating or vouching for pre-existing chattels – are not typical of the sort
of disclosures which are caught in the main current of history and sentiments giving vitality
to the privilege. Yet they are within the borders of its protection. Furthermore, it follows
that documents or chattels obtained from the person's control without the use against him
of process relying on his truth-telling is not within the scope of the privilege,” 8 WIGMORE
ON EVIDENCE, §2264, at 363-64 (1940 ed.)(at 379-80 (1961 ed.)) (emphasis in the original).
The Court described the five subpoenas as follows: “The first two demanded the
production of the telephone records of several of respondent's companies and all records
pertaining to four bank accounts of respondent and his companies. The subpoenas were
limited to the period between January 1, 1977 and the dates of the subpoenas. The third
subpoena demanded the production of a list of virtually all the business records of one of
respondent's companies for the period between January 1, 1976, and the date of the
subpoena. [ The categories of records sought by the third subpoena were: 1) general ledgers;
2) general journals; 3) cash disbursement journals; 4) petty cash books and vouchers; 5)
purchase journals; 6) vouchers; 7) paid bills; 8) invoices; 9) cash receipts journal; 10)
billings; 11) bank statements; 12) canceled checks and check stubs; 13) payroll records;
14) contracts and copies of contracts, including all retainer agreements; 15) financial
statements; 16) bank deposit tickets; 17) retained copies of partnership income tax returns;
18) retained copies of payroll tax returns; 19) accounts payable ledger; 20) accounts
receivable ledger; 21) telephone company statement of calls and telegrams, and all telephone
toll slips; 22) records of all escrow, trust, or fiduciary accounts maintained on behalf of
clients; 23) safe deposit box records; 24) records of all purchases and sales of all stocks and
bonds; 25) names and home addresses of all partners, associates, and employees; 26) W-2
forms of each partner, associate, and employee; 27) workpapers; and 28) copies of tax
returns. ] The fourth subpoena sought production of a similar list of business records
belonging to another company. [The only documents requested in the fourth subpoena that
were not requested in the third were the company's stock transfer book, any corporate
minutes, the corporate charter, all correspondence and memoranda, and all bids, bid bonds,
and contracts. The request for ‘corporate’ minutes and the ‘corporate’ charter is puzzling
because the company named in the subpoena was an unincorporated sole proprietorship.]
The final subpoena demanded production of all bank statements and canceled checks of two
of respondent's companies that had accounts at a bank in the Grand Cayman Islands," 465
U.S. at 606-7 (footnotes 1 and 2 of the opinion in brackets).
would compel [Doe] to admit that the records exist, that they are in his possession,
and that they are authentic. These communications, if made under compulsion of
a court decree, would violate [Doe’s] Fifth Amendment rights . . . . The government
argues that the existence, possession and authenticity of the documents can be proved
without [Doe’s] testimonial communication, but it cannot satisfy this court as to how
that representation can be implemented to protect the witness in subsequent
proceedings,” 465 U.S. at 613, quoting, In re Grand Jury Empanelled March 19,
1980, 541 F.Supp.1, 3 (D.N.J. 1981).
The Court of Appeals concurred, adding that, “we find nothing in the record that
would indicate that the United States knows, as a certainty, that each of the myriad
documents demanded by the five subpoenas in fact is in the appellee’s possession or
subject to his control. The most plausible inference to be drawn from the
broad-sweeping subpoenas is that the Government, unable to prove that the
subpoenaed documents exist – or that the appellee even is somehow connected to the
business entities under investigation – is attempting to compensate for its lack of
knowledge by requiring the appellee to become, in effect, the primary informant
against himself,” 465 U.S. at 613, quoting, In re Grand Jury Empanelled March 19,
1980, 680 F.2d 327, 335 (3d Cir. 1982).
The Supreme Court agreed. In fact, it declined to conduct an independent
analysis of whether Doe had established the testimonial and incrimination elements
of his claim. It simply deferred to the District Court's finding, affirmed by the Third
Circuit, that compliance with the subpoenas “would involve testimonial selfincrimination,” 465 U.S. at 613.
When the Privilege Does Not Apply
There followed in fairly rapid succession three cases in which the Court
confirmed the vitality of the action of production doctrine but found its benefits
beyond the reach of the claimants before it.
Braswell: Collective Entities.
In Braswell v. United States, 487 U.S. 99 (1988), the Court held that the
president and sole shareholder of a corporation could not interpose the act of
production to avoid the commands of a grand jury subpoena for corporate records,
even if their contents would incriminate him, 487 U.S. at 102. Corporations and
other “collective entities” like partnerships or labor organizations enjoy no privilege
against self-incrimination, 487 U.S. at 107-8. The privilege stands as no impediment
to demands for their records addressed to their custodial representatives, although the
act of production may afford the custodial individual protection.3
“Although a corporate custodian is not entitled to resist a subpoena on the ground that his
act of production will be personally incriminating, we do think certain consequences flow
from the fact that the custodian's act of production is one in his representative rather than
personal capacity. Because the custodian acts as a representative, the act is deemed one of
the corporation and not the individual. Therefore, the Government concedes, as it must, that
it may make no evidentiary use of the ‘individual act’ against the individual. For example,
Doe (II): Consent Forms.
In Doe v. United States (Doe II), 487 U.S. 201 (1988), the Court encountered
a situation akin to Schmerber when Doe's signature was taken from him over his
objections. Doe contested a court order that directed him to sign a form authorizing
any bank in the Cayman Islands or Bermuda to disclose to the grand jury information
concerning any accounts Doe might have in any of the banks. Using the words once
again of Dean Wigmore, the Court declared that, “Unless some attempt is made to
secure a communication – written, oral or otherwise – upon which reliance is to be
placed as involving [the accused’s] consciousness of the facts and the operations of
his mind in expressing it, the demand made upon him is not a testimonial one” and
consequently outside the privilege, 487 U.S. at 211, quoting, 8 WIGMORE ON
EVIDENCE §2265, at 386 (1961 ed.)[at 375 (1940 ed.)] .
In Doe II, the execution of the form “is analogous to the production of a
handwriting sample or voice exemplar: it is a nontestimonial act. In neither case is
the suspect's action compelled to obtain any knowledge he might have,” at 217.
Moreover, “[b]y signing the form, Doe makes no statement, explicit or implicit,
regarding the existence of a foreign bank account or his control over such account.
Nor would his execution of the form admit the authenticity of any records produced
by the bank,” 215-16.
in a criminal prosecution against the custodian, the Government may not introduce into
evidence before the jury the fact that the subpoena was served upon and the corporation's
documents were delivered by one particular individual, the custodian. The Government has
the right, however, to use the corporation's act of production against the custodian. The
Government may offer testimony – for example, from the process server who delivered the
subpoena and from the individual who received the records – establishing that the
corporation produced the records subpoenaed. The jury may draw from the corporation's
act of production the conclusion that the records in question are authentic corporate records,
which the corporation possessed, and which it produced in response to the subpoena. And
if the defendant held a prominent position within the corporation that produced the records,
the jury may, just as it would had someone else produced the documents, reasonably infer
that he had possession of the documents or knowledge of their contents. Because the jury
is not told that the defendant produced the records, any nexus between the defendant and the
documents results solely from the corporation's act of production and other evidence in the
case. [We reject the suggestion that the limitation on the evidentiary use of the custodian's
act of production is the equivalent of constructive use immunity barred under our decision
in Doe, 465 U.S., at 616-617. Rather, the limitation is a necessary concomitant of the notion
that a corporate custodian acts as an agent and not an individual when he produces corporate
records in response to a subpoena addressed to him in his representative capacity.
“We leave open the question whether the agency rationale supports compelling a
custodian to produce corporate records when the custodian is able to establish, by showing
for example that he is the sole employee and officer of the corporation, that the jury would
inevitably conclude that he produced the records.]
“Consistent with our precedent, the United States Court of Appeals for the Fifth
Circuit ruled that petitioner could not resist the subpoena for corporate documents on the
ground that the act of production might tend to incriminate him. The judgment is therefore
Affirmed.” 487 U.S. at 117-19 (footnote 11 of the opinion in brackets).
Bouknight: Required Reports.
In Baltimore City Dept. of Social Services v. Bouknight, 493 U.S. 549 (1990),
Bouknight had maintained custody of her child subject to supervisory restrictions
imposed as consequence of serious child abuse, but was held in contempt for failure
to produce the child at a custody hearing. The Supreme Court denied her claim of
the act of production as defense, confirming that the act of production does not
excuse otherwise required compliance with a regulatory scheme, 493 U.S. at 555-56,
although it may curtail the government's ability to use compliance for prosecutorial
Hubbell: A Second Application
Most recently, the Court found the act of production applicable notwithstanding
the fact the witness had been granted immunity, United States v. Hubbell, 530 U.S.
27 (2000). In Doe I, the Court took special note of the government's failure to secure
statutory immunity in the face of an act of production claim;5 in Hubbell the
government secured a statutory immunity order that required Hubbell to surrender
the subpoenaed documents, but that necessarily guaranteed that their production
would not be used directly or indirectly to incriminate him.
Hubbell had entered a plea agreement under which he pled guilty to tax evasion
and fraud and promised to fully cooperate with the Independent Counsel's
Whitewater investigation. Concerned that Hubbell was not being completely candid,
the Independent Counsel served him with a far reaching grand jury subpoena.6
“We are not called upon to define the precise limitations that may exist upon the State's
ability to use the testimonial aspects of Bouknight’s act of production in subsequent
proceedings. But we note that imposition of such limitations is not foreclosed. The same
custodial role that limited the ability to resist the production order may give rise to
corresponding limitations upon the direct and indirect use of that testimony. See Braswell,
487 U.S. at 118 and n.11,” 493 U.S. at 561.
“The Government, as it concedes, could have compelled respondent to produce the
documents listed in the subpoena. Sections 6002 and 6003 of Title 18 provide for the
granting of use immunity with respect to the potentially incriminating evidence. . . . The
Government did state several times before the District Court, that it would not use
respondent's act of production against him in any way. But counsel for the Government
never made a statutory request to the District Court to grant respondent use immunity.
[Despite repeated questioning at oral argument, counsel for the Government gave no
plausible explanation for the failure to request official use immunity rather than promising
that the act of producing the documents would not be used against respondent.] We decline
to extend the jurisdiction of courts to include prospective grants of use immunity in the
absence of the formal request that the statute requires,” 465 U.S. at 614-16 (footnote 15 of
the opinion in brackets).
“On October 31, 1996, upon application by the Independent Counsel, a subpoena was
issued commanding [Hubbell] 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.
“B. 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 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 January 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 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.
“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, counsel
or 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
Hubbell responded by asserting his privilege against self-incrimination and was
made the subject of a statutory use immunity order. The documents he subsequently
supplied and evidence derived from them resulted in his prosecution for crimes
apparently unrelated to either his first conviction or Whitewater. The District Court
described the government's effort as a “quintessential fishing expedition,” and
dismissed the indictment, 530 U.S. at 32, quoting, United States v. Hubbell, 11
F.Supp.2d 25, 37 (D.D.C. 1998). The Supreme Court essentially agreed.
Content aside, the mental exercise required for Hubbell to gather, sort, and
organize the thousands of pages of documents, which he then testified fully complied
with the subpoena’s demand (other than for a documents privileged on other
grounds), handed the prosecution a road map to crimes about which until then it was
In doing so, the Court felt Hubbell had become an essential or at least valuable
witness against himself within the understanding of the Fifth Amendment:
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 [Hubbell’s] act of producing
subpoenaed documents was the first step in a chain of evidence that led to his
prosecution. The documents did not magically appear in the prosecutor's office
like "manna from heaven." They arrived there only after [Hubbell] asserted his
constitution privilege, received a grant of immunity, and . . . 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 [Hubbell’s] truthful reply to the subpoena that the
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 deposit items, cashier's checks, traveler's checks, wire
transfer records and/or other records of financial transactions,” 530 U.S. at 46-9.
A critical component of the Court’s analysis – and the key to the distinction between the
contents of documents which are not privileged and the act of their production which is –lies in the realization that the privilege protects not only incriminating communications but
communications that form a link, perhaps even the first link, in the chain that leads to
incrimination: “It has, however, long been settled that [Fifth Amendment's] 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.
. . '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,” 530
U.S. at 38, quoting, Hoffman v. United States, 341 U.S. 479, 486 (1951). The act of
production can in some instances, as in Hubbell, reveal the existence and location of
unknown depositories of incriminating evidence that come within the privilege derivatively
even though the fact of their location and existence alone is not incriminating.
Government received the incriminating documents of which it made substantial
use in the investigation that led to the indictment.
. . . It was unquestionably necessary for [Hubbell] to make extensive use
of the contents of his own mind in identifying the hundreds of documents
responsive to the request in the subpoena. 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. The Government’s anemic view of
[Hubbell’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 .
. . for the documents produced simply fails to account for these realities. 530
U.S. at 43
The Independent Counsel argued to no avail that like the Fisher tax records, the
existence of the Hubbell business and tax documents should be considered a
“foregone conclusion” and therefore the act of revealing their existence lacked
testimonial weight. The Court simply considered Doe I, with its sweeping,
minimally particularized commands, a more apt comparison.8
“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 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,” 530 U.S. at 44-45.
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