finding that while the act itself of complying with a summons for documents had “communicative aspects of its own, wholly aside from the contents of the papers produced”—including tacitly conceding the existence and location of the documents—the matters communicated were, under the circumstances, a “foregone conclusion” that added “little or nothing to the sum total of the Government’s infor-mation_” “Under these circumstances .., no constitutional rights are touched. The question is not of testimony but of surrender.”
How later courts described this case
- finding that while the act itself of complying with a summons for documents had “communicative aspects of its own, wholly aside from the contents of the papers produced”—including tacitly conceding the existence and location of the documents—the matters communicated were, under the circumstances, a “foregone conclusion” that added “little or nothing to the sum total of the Government’s infor-mation_” “Under these circumstances .., no constitutional rights are touched. The question is not of testimony but of surrender.”
- stating the Fifth Amendment does not protect an act of production when any potentially testimonial component of the act of production— such as the existence, custody, and authenticity of evidence—is a “foregone conclusion” that “adds little or nothing to the sum total of the Government's information.”
- finding no act of production privilege where "[t]he 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."
- stating that while "the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence,” it does apply "when the accused is compelled to make a testimonial communication that is incriminating”
Written by the judges who cited it.
Distinguished
Distinguished by Streett v. United States, 65 F. Supp. 2d 383 (1999)
425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), are factually distinguishable, and thus, inapplicable to this case.
Distinguished by Municipal Investigating Committee v. Servello, 200 N.J. Super. 413 (1984)
The case of Fisher v. U.S., 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), relied upon by plaintiff, is distinguishable not only on its facts but also in the language and holding of the Court.
Distinguished by Doe v. Selective Service System, 557 F. Supp. 937 (1983)
425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976) is also inapposite.
Distinguished by United States v. Pam Gutierrez and Simon Saint John Gutierrez, 696 F.2d 753 (1983)
425 U.S. 391, 397, 96 S.Ct. 1569, 1574, 48 L.Ed.2d 39 (1976) (absent compulsion, fifth amendment is inapplicable);
The opinion
Mr. Justice Marshall,
concurring in the judgment.
Today the Court adopts a wholly new approach for deciding when the Fifth Amendment privilege against self-incrimination can be asserted to bar production of documentary evidence. 1 This approach has, in various *431 forms, been discussed by commentators for some time; nonetheless, as I noted a few years ago, the theory “has an odd sound to it.” Couch v. United States, 409 U. S. 322, 348 (1973) (dissenting). The Fifth Amendment basis for resisting production of a document pursuant to subpoena, the Court tells us today, lies not in the document's contents, as we previously have suggested, but in the tacit verification inherent in the act of production itself that the document exists, is in the possession of the producer, and is the one sought by the subpoena.
This technical and somewhat esoteric focus on the testimonial elements of production rather than on the content of the evidence the investigator seeks is, as Mr. Justice Brennan demonstrates, contrary to the history and traditions of the privilege against self-incrimination both in this country and in England, where the privilege originated. A long line of precedents in this Court, whose rationales if not holdings are overturned by the Court today, support the notion that “any forcible and compulsory extortion of a man’s . . . private papers to be used as evidence to convict him of crime” compels him to be a witness against himself within the meaning of the Fifth Amendment to the Constitution. Boyd v. United States, 116 U. S. 616, 630 (1886). See also Bellis v. United States, 417 U. S. 85, 87 (1974); Couch v. United States, supra, at 330; Schmerber v. California, 384 U. S. 757, 763-764 (1966); Davis v. United States, 328 U. S. 582, 587-588 (1946); United States v. White, 322 U. S. 694, 698-699 (1944); Wheeler v. United States, 226 U. S. 478, 489 (1913); Wilson v. United States, 221 U. S. 361, 377 (1911).
However analytically imprecise these cases may be, they represent a deeply held belief on the part of the Members of this Court throughout its history that there *432 are certain documents no person ought to be compelled to produce at the Government's request. While I welcome the Court’s attempt to provide a rationale for this longstanding rule, it is incumbent upon the Court, I believe, to fashion its theory so as to protect those documents that have always stood at the core of the Court’s concern. Thus, I would have preferred it had the Court found some room in its theory for recognition of the import of the contents of the documents themselves. See Couch v. United States, supra, at 350 (Marshall, J., dissenting).
Nonetheless, I am hopeful that the Court’s new theory, properly understood and applied, will provide substantially the same protection as our prior focus on the contents of the documents. The Court recognizes, as others have argued, that the act of production can verify the authenticity of the documents produced. See, e. g., United States v. Beattie, 522 F. 2d 267 (CA2 1975), cert. pending, Nos. 75-407, 75-700. But the promise of the Court’s theory lies in its innovative discernment that production may also verify the documents’ very existence and present possession by the producer. This expanded recognition of the kinds of testimony inherent in production not only rationalizes the cases, but seems to me to afford almost complete protection against compulsory production of our most private papers.
Thus, the Court’s rationale provides a persuasive basis for distinguishing between the corporate-document cases and those involving the papers of private citizens. Since the existence of corporate record books is seldom in doubt, the verification of their existence, inherent in their production, may fairly be termed not testimonial at all. On the other hand, there is little reason to assume the present existence and possession of most private papers, and certainly not those Mr. Justice Brennan places at the top of his list of documents that the privilege should protect. See ante, at 426-427 (concurring in judgment). *433 Indeed, there would appear to be a precise inverse relationship between the private nature of the document and the permissibility of assuming its existence. Therefore, under the Court’s theory, the admission through production that one’s diary, letters, prior tax returns, personally maintained financial records, or canceled checks exist would ordinarily provide substantial testimony. The incriminating nature of such an admission is clear, for while it may not be criminal to keep a diary, or write letters or checks, the admission that one does and that those documents are still available may quickly — or simultaneously — lead to incriminating evidence. If there is a “real danger” of such a result, that is enough under our cases to make such testimony subject to the claim of privilege. See Rogers v. United States, 340 U. S. 367 (1951); Brown v. Walker, 161 U. S. 591 (1896); Counselman v. Hitchcock, 142 U. S. 547 (1892). Thus, in practice, the Court’s approach should still focus upon the private nature of the papers subpoenaed and protect those about which Boyd and its progeny were most concerned.
The Court’s theory will also limit the prosecution’s ability to use documents secured through a grant of immunity. If authentication that the document produced is the document demanded were the only testimony inherent in production, immunity would be a useful tool for obtaining written evidence. So long as a document obtained under an immunity grant could be authenticated through other sources, as would often be possible, reliance on the immunized testimony — the authentication — and its fruits would not be necessary, and the document could be introduced. The Court’s recognition that the act of production also involves testimony about the existence and possession of the subpoenaed documents mandates a different result. Under the Court’s theory, if the document is to be obtained the *434 immunity grant must extend to the testimony that the document is presently in existence. Such a grant will effectively shield the contents of the document, for the contents are a direct fruit of the immunized testimony— that the document exists — and cannot usually be obtained without reliance on that testimony. 2 Accordingly, the Court’s theory offers substantially the same protection against procurement of documents under grant of immunity that our prior cases afford.
In short, while the Court sacrifices our pragmatic, if somewhat ad hoc, content analysis for what might seem an unduly technical focus on the act of production itself, I am far less pessimistic than Mr. Justice Brennan that this new approach signals the end of Fifth Amendment protection for documents we have long held to be privileged. I am not ready to embrace the approach myself, but I am confident in the ability of the trial judges who must apply this difficult test in the first instance to act with sensitivity to our traditional concerns in this uncertain area.
For the reasons stated by Mr. Justice Brennan, I concur in the judgment of the Court.
The Court’s theory would appear to apply to real evidence as well.
Similarly, the Court’s theory affords protection to one who possesses documents that he cannot authenticate. If authentication were the only relevant testimony inherent in the act of production, such a person would be forced to relinquish his documents, for he provides no authentication testimony of relevance by producing them in response to a subpoena. See United States v. Beattie, 522 F. 2d 267 (CA2 1975), cert. pending, Nos. 75-407, 75-700. Under the Court’s theory, however, if the existence of these documents were in question, the custodian would still be able to assert a claim of privilege against their production.