stating that “[although the contents of a document may not be privileged, the act of producing the document may be” because the holder of the document is compelled “to perform an act that may have testimonial aspects and an incriminating effect”; concluding that the district court did not err in finding that a sole proprietor’s “act of producing [subpoenaed business] documents would involve testimonial self-incrimination”
How later courts described this case
- stating that “[although the contents of a document may not be privileged, the act of producing the document may be” because the holder of the document is compelled “to perform an act that may have testimonial aspects and an incriminating effect”; concluding that the district court did not err in finding that a sole proprietor’s “act of producing [subpoenaed business] documents would involve testimonial self-incrimination”
- explaining that, in the context of subpoenas for documents from sole proprietorship companies, the Government was not “foreclosed from ... producing evidence that possession, existence, and authentication [of the subpoenaed documents] were a ‘foregone conclusion’ ”
- holding that the defendant could not be compelled to produce documents without a statutory grant of use immunity despite the Government’s repeated oral promises to the court that it would not use the act of production against the defendant
- holding that the Fifth Amendment does not protect the contents of an individual's business records in his own possession
Written by the judges who cited it.
Later courts went against this
Questioned by In Re Grand Jury Subpoena. In Re Grand Jury Subpoena. United States of America v. (Under Seal), 831 F.2d 290 (1987)
He also unsuccessfully argued below that subsequent decisions of the Supreme Court, viz., Fisher v. United States, 391 U.S. 412 (1976) and United States v. Doe, 465 U.S. 605 (1984), have undercut the continuing viability of the Bellis doctrine.
Questioned by United States v. Hubbell, Webster L., 167 F.3d 552 (1999)
” Id. The dissent’s dual concerns about the continuing viability of Doe I are, respectively, unfounded and inaccurate.
Declined to follow by Matter of Grand Jury Proceedings of Guarino, 104 N.J. 218 (1986)
Thus, in defining the scope of our common-law privilege, we decline to follow the Court’s rationale for its Doe decision.
Distinguished
Distinguished by Braswell v. United States, 487 U.S. 99 (1988)
Petitioner also offers United States v. Doe, 465 U. S. 605 (1984), as support for his position, but that decision is plainly inapposite.
Distinguished by State v. Wellington Precious Metals, Inc., 12 Fla. L. Weekly 399 (1987)
In our view, both Brown and Doe are distinguishable from the present case.
Distinguished by United States v. Friedman, 638 F. Supp. 816 (1986)
Shafran argues that the Doe case is inapplicable for two reasons: first, it could not possibly be relevant in any future prosecution of Lindenauer whether or not he possessed the documents; and second, since all of the subpoenaed documents are self-authenticating, his delivery of them could not in any way assist the Government in any future litigation.
Distinguished by Siegel v. New Jersey Division of Taxation, 208 N.J. Super. 588 (1986)
This holding in Doe is inapplicable here in that defendant’s records were required to be kept and therefore were already known to exist, thereby removing any notion of compelled testimony through their production. [State v. Stroger, 97 N.J. 391, 405-407 (1984)].
The opinion
*618 Justice O’Connor,
concurring.
I concur in both the result and reasoning of Justice Powell’s opinion for the Court. I write separately, however, just to make explicit what is implicit in the analysis of that opinion: that the Fifth Amendment provides absolutely no protection for the contents of private papers of any kind. The notion that the Fifth Amendment protects the privacy of papers originated in Boyd v. United States, 116 U. S. 616, 630 (1886), but our decision in Fisher v. United States, 425 U. S. 391 (1976), sounded the death knell for Boyd. “Several of Boyd’s express or implicit declarations [had] not stood the test of time,” 425 U. S., at 407 , and its privacy of papers concept “ha[d] long been a rule searching for a rationale . . . .” Id., at 409 . Today’s decision puts a long overdue end to that fruitless search.