The opinion
WILLIAMS, Circuit Judge,
dissenting from Part II:
The commentator who predicted that Fisher and Doe would “inevitably lead” to “metaphysical speculation” was apparently all too prescient. See Samuel A. Alito, Jr., “Documents and the Privilege Against Self-Incrimination,” 48 U. Pitt. L.Rev. 27, 59 (1986). The majority opinion supplies some such speculation and demands more from the district court on remand. I would limit the district court’s inquiry about the subpoenaed documents to verifying that the Independent Counsel, in securing Hubbell’s indictment, has only used information that he would have had if the documents had appeared in his office, unsolicited and without explanation.
* * *
It is clear that a prosecutor who has obtained personal documents by subpoena may not, without violating either the Fifth Amendment or a use immunity of equivalent scope granted under 18 U.S.C. § 6002 , use against the subpoenaed person any testimonial, incriminating information that is communicated by that person’s “act of production” of the documents. See Doe v. United States, 487 U.S. 201, 209 , 108 S.Ct. 2341 , 101 L.Ed.2d 184 (1988) (“Doe II"). The Supreme Court identified three species of information possibly communicated by such an act of production — possession, authentication and existence. See id.
Here the only interesting issue is the “existence” theory; possession and authentication seem properly outside the case. Hubbell’s prior possession is irrelevant if, as appears to be the case, the Independent Counsel relied on the documents only for the information that they contain, and thus had no occasion to rely on Hubbell’s act of production, or anything else, for evidence that Hubbell at one time had “possessed” them. Nor does it appear that he used the production for authentication; he never sought to show the grand jury that Hub-bell, by delivering the documents in response to the subpoena, had identified them as being ones that matched the descriptive language of the subpoena.
Thus we are left with “existence.” From the truism that the Independent Counsel could not use the contents of the documents unless they (at some time) existed, and unless he learned of that existence, the majority leaps to the proposition that the Independent Counsel’s awareness of their existence stems from a testimonial aspect of Hubbell’s act of production. Accordingly, it says, the Independent Counsel may use the information in the documents if but only if he can show that he possessed, before securing the subpoena, a knowledge of the documents’ existence sufficiently detailed that his later knowledge, after their delivery, was a “foregone conclusion.”
But not all aspects of the act of production are testimonial. Where an item of information that the prosecutor receives from a document delivery flows from a non-testimonial aspect, he does not depend on any testimonial aspect. Information as to the existence of the pieces of paper turned over by a subpoenaed party can always be traced to non-testimonial information. I elaborate below.
“Testimonial.” Before the Fisher Court introduced the “foregone conclusion” discussion on which the majority is so focused— and which I discuss below — it observed that the whole issue of whether something is “testimonial” depends on the facts and circumstances. Fisher v. United States, 425 U.S. 391, 410 , 96 S.Ct. 1569 , 48 L.Ed.2d 39 (1976). But what facts and circumstances are relevant?
*598 One possibility might be that all actions from which we can glean information are considered testimonial communications for purposes of Fifth Amendment analysis. But the precedents upon which Fisher relied in more or less rejecting the view of Boyd v. United States, 116 U.S. 616 , 6 S.Ct. 524 , 29 L.Ed. 746 (1886), that the Fifth Amendment protects the contents of subpoenaed documents, appear to rule this out. Those cases involve the government forcing a person to try on a blouse worn by the perpetrator to establish whether it fit the defendant, Holt v. United States, 218 U.S. 245 , 31 S.Ct. 2 , 54 L.Ed. 1021 (1910), or to give blood samples, Schmerber v. California, 384 U.S. 757, 764-65 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966), voice samples, United States v. Wade, 388 U.S. 218, 222-23 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967), or handwriting samples, Gilbert v. California, 388 U.S. 263, 266-67 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967). They do not rely on anything like the “foregone conclusion” rationale; instead, they find that such acts are not testimonial because they fit into the category of “compulsion which makes a suspect or accused the source of ‘real or physical evidence.’” Schmerber, 384 U.S. at 764 , 86 S.Ct. 1826 .
Nor can these eases be recharacterized as ones where the prosecutor’s grasp of the information obtained was a foregone conclusion. Of course it is true that, for example, it is typically not much to admit that one can speak. But in giving a voice sample, one also admits that one’s voice has various characteristic idiosyncrasies — a non-obvious and incriminating fact that the law allows the prosecutor to secure by compulsion. The prosecutor’s and jury’s access to that information is as dependent on the speaker’s compelled implicit admission of ability to speak as their access to the information on documents is dependent on the subpoenaed party’s implicit admission of the documents’ existence.
One can, of course, discern a communicative element in the giving of a voice sample: a person commanded to speak implicitly says, “This is the way I sound when I speak.” But that information adds nothing to what a jury learns from its own ears (or from a properly authenticated tape, if that is the way it is done, see, e.g., United States v. Dionisio, 410 U.S. 1 , 93 S.Ct. 764 , 35 L.Ed.2d 67 (1973) (grand jury subpoena requiring suspects to read transcripts into a recording device is consistent with Fifth Amendment)). Similarly, a person giving a blood sample implicitly says, “This is my blood.” Though there is implicit communication, the prosecutor need not rely on it, so long as he has the blood and a witness to the blood-giving itself.
“Foregone Conclusion.” The most confusing part of Fisher is the language that the courts have taken to tie “foregone conclusion” closely to the “testimonial” analysis and vice versa. 425 U.S. at 411 , 96 S.Ct. 1569 . The Court said: “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 conclu-sion_” Id. (citation omitted). In my view, the latter sentence should be read in light of the former. That is, “foregone conclusion” is only a subset of the broader set: instances where sources independent of testimonial aspects of the compulsion fully account for the prosecutor’s evidence.
This relationship is illustrated in an example used in Fisher . “When an accused is required to submit a handwriting exemplar he admits his ability to write and impliedly asserts that the exemplar is his writing. But in common experience, the first would be a near truism and the latter self-evident.” Id. The Court here is implicitly referring to Gilbert v. California, 388 U.S. at 265-67, 87 S.Ct. 1951 , one of the cases it had just relied upon in more or less overruling Boyd . In Gilbert , the police got the suspect to write out some handwriting exemplars while he was in custody and being questioned. When the Court calls the implicit admission of ability to write a “near-truism,” the “near” is critical. Consider a kidnapping, in which a ransom note is a major piece of evidence, but the suspect claims illiteracy. Suppose police, posing as terrorists, frightened him into writing something (the text of which had no bearing on the kidnapping). There might be some sort of due process argument, but in using the handwriting sample the prosecutor *599 would not need to rely on any implicit testimonial aspect of the scenario (“Yes, I do know how to write.”); accordingly he could use the sample without violation of the defendant’s privilege against self-incrimination.
More important is the defendant’s implicit admission that the exemplars are his. This is not, strictly speaking, “self-evident”; rather, it is supported by evidence (the testimony of the witnessing police officers) of a non-testimonial aspect of the act of production, here the act of writing. But as the Court says, the government is “in no way relying on the ‘truthtelling’ of [defendant]” to prove anything: it is relying only on the immediate personal observations of the policemen and on nontestimonial aspects of the defendant’s act to link the handwriting to the defendant. Everything else of evidentiary value, namely the idiosyncrasies of the writing, depends only on the writing itself. As we’ll see more explicitly below, this matches the relation of a prosecutor to documents delivered pursuant to subpoena. The information on the documents stands or falls on its own value, even though (by definition) produced by the defendant’s act of production. Thus: for handwriting, the link to the defendant is established by police witnesses and the testimonial value of the defendant’s act of production is redundant; for documentary information, so long as the prosecutor depends as here only on information in the documents themselves for the link to defendant, the communicative aspect of the act of delivery is equally redundant.
Existence. In light of the above, the only sense of “existence” that is covered by the Fifth Amendment is that which refers back to the subpoena. The responsiveness of the documents to the subpoena gives knowledge of “the existence of the papers demanded,” 425 U.S. at 410 , 96 S.Ct. 1569 (emphasis added). ‘Tes, these are the records you described in the subpoena.” If the government could refer back to the subpoena to identify documents and to clarify relationships that were not clear on their face or by other independent means, then it would be using a testimonial component of the transaction — the witness’s implicit statement that the documents match the subpoena’s description. Hubbell’s claim for blanket exclusion of the contents, by contrast, relies on existence in a quite different sense — the fact that these particular pieces of paper are in being. But this is quite easily confirmed by these papers’ own physical presence, which is “self-evident” at the time and place of production and so long thereafter as the government maintains proper custody. Existence in that sense is as “self-evident” as the blood and its characteristics in Schmerber , the voice samples and their characteristics in Wade , and the handwriting and its characteristics in Gilbert .
Some of the language in Fisher and Doe , to be sure, suggests a more sweeping view of “existence.” Fisher I have discussed above. Doe upholds a decision quashing certain subpoenas, based on trial court findings (endorsed by the court of appeals) that delivery of the documents gave the prosecutor previously absent knowledge of their existence, possession, and authenticity. See United States v. Doe, 465 U.S. 605 , 613-14 & nn.11-13, 104 S.Ct. 1237 , 79 L.Ed.2d 552 (1984). But the implications are quite unclear. The Court relied explicitly and entirely on the “two courts” rule. Id. While the majority argues that the findings below were structurally applications of law to fact, see Maj. at 570 n.24, the Court’s treatment of them was as simple fact. Second, to the extent that its rehearsing of the arguments embraced in the courts below may suggest the sort of “existence” theory employed by the majority, the inference is drawn in question by the Court’s reliance on the anticipated use of the act of production for authentication of the documents, i.e., use of an indisputably testimonial aspect of subpoena compliance. See 465 U.S. at 614 n. 13, 104 S.Ct. 1237 .
Accordingly, the logic of Fisher and Doe, if not every phrase, clearly supports the prosecutor’s right to use information from subpoenaed documents regardless of whether he was previously able to describe them. The particular documents’ existence speaks for itself once they have been delivered; so long as his use of them is independent of any testimonial aspects of the witness’s act of *600 production, that use is consistent with the witness’s Fifth Amendment privilege.
The majority confuses the issue with a rather odd distinction: if compulsion “acts upon, and requires the exercise of an individual’s mental faculties for communication,” it is testimonial; if it “merely utilizes the body of the accused as a form of evidence,” it is not. Maj. at 572-573.
To the extent that the majority here acknowledges that the bare physical aspects of a production — the meanings that are directly apparent to the senses — are unprotected by the Fifth Amendment, it is correct. But there is no reason to restrict this to the “body of the accused.”
In fact, the majority fails to explain the cases that fall outside this apparent restriction. Gilbert v. California, approvingly cited by the majority, concerned a handwriting sample that the suspect had to write out and then turn over to the police. But more telling is Baltimore Dept. of Social Servs. v. Bouknight, 493 U.S. 549, 554-55 , 110 S.Ct. 900 , 107 L.Ed.2d 992 (1990). In that case, a woman was ordered to turn over a child whom she was believed to have abused and who was last seen in her custody. The Court held, among other things, that the woman “cannot claim the privilege based upon anything that examination of [the child] might reveal.”
Thus in Bouknight it was not the body of the accused that was used as a form of evidence, but the body of another. Documents are exactly analogous: physical objects the examination of which yields eviden-tiary value or clues. Documents do, of course, represent the concrete embodiment of mental activity, but that is a false lead: these thoughts (the contents of the documents) were, we assume, put to paper quite voluntarily — if they were not, they would unquestionably be protected. See Doe I, 465 U.S. at 610-11 , 104 S.Ct. 1237 . In Bouknight the Court was obviously indifferent to the necessity that the suspect find and turn over a child whose location was completely unknown to the government; the court here should be equally indifferent to the necessity that Hubbell do the same for documents.
Delivery of the child in Bouknight clearly depended on the suspect’s exercise of her mental faculties; in fact, her intellectual efforts turning up the child were no less then they would have been had the government known its whereabouts in advance. The case thus flatly contradicts the majority idea that self-incrimination occurs whenever the subpoena “requires the exercise of an individual’s mental faculties.” The majority might say, with internal consistency though not with conformity to the cases, that the government may use the product of forced mental exercise so long the mental exercise is no more than an automaton’s execution of intel-lection already carried out by the government. But that would take it to the position that a document subpoena must itself set forth whatever descriptive detail is necessary (under the majority’s murky test) about the documents’ character and location. Even the majority evidently recoils at this absurdity.
There are of course non-physical aspects to the production in Bouknight . In another part of that opinion, the Court used a different analysis for the suspect’s “implicit communication of control over [the child] at the moment of production,” 493 U.S. at 555 , 110 S.Ct. 900 , saying that although this was arguably an incriminating “testimonial assertion,” see id., some uses of it might be permissible under the doctrine that the Fifth Amendment may not be invoked to resist compliance with certain types of regulatory regimes, id. at 555-62 , 110 S.Ct. 900 . Here, of course, the government has no interest in Hubbell’s control of the documents at the moment of production, and seeks to draw no inferences from that control. But the majority’s concern here with information about the documents before their delivery is utterly different from the Bouknight Court’s focus on “the moment of production.”
The majority’s confusion is further evident in its attempt to draw some distinction between whether something is “testimonial” and whether it has “testimonial value.” See Maj. at 574 n.27, 576 n.31. This dissent, the *601 majority argues, wrongly frames the former rather than the latter issue as the key. Putting aside such issues as whether this terminological difference makes sense — if something is not “testimonial,” its “testimonial value” is obviously zero — or is to be found in the cases — Fisher, for example, simply refers to “the more difficult issuef]” of “whether the tacit averments ... are [ ] testimonial,” 425 U.S. at 410 , 96 S.Ct. 1569—the actual analysis endorsed by the majority is not much different from the analysis in the “Foregone Conclusion” section above. The majority writes:
Where the government need not rely upon the truthtelling of the witness, because it has prior knowledge of the information that will be communicated through the act of production, ‘no constitutional rights are touched.’
Maj. at 576 n.31 (emphasis added) (quoting Fisher). The only disagreement here is the italicized portion: for some reason, the majority believes that possession of “prior knowledge” is the only circumstance in which the government “need not rely upon the truthtelling of the witness.” But the majority never explains how, under its theory, there is no testimonial self-incrimination if the government need not rely because it already knows, while there is testimonial self-incrimination if the government has another reason for dispensing with reliance on communicative aspects of the witness’s acts. Nor could any such explanation be consistent with precedent. In Bouknight , which concerned a subpoena to turn over a missing child, the Court found that the target could not “assert the privilege upon the theory that compliance would assert that the child produced is in fact [the child sought]” because that fact was one “the State could readily establish,” 493 U.S. at 555 , 110 S.Ct. 900 , despite the .fact that the government could not have made such a finding until after the production. 1 Here, too, the government need not rely on any communicative or testimonial aspect of Hubbell’s act of production; once it acquired the documents, their intrinsic value evidently served its purposes quite adequately. The majority imposes a wholly artificial and impermissible limitation on the reasons for which the government “need not rely” on testimonial implications of the act of production.
For a district judge, the challenge of the majority’s view is to determine the “quantum” of relative prosecutorial ignorance that triggers a self-incrimination violation. Prosecutors know that businessmen keep business records (just as they know that living humans have blood and literate persons have handwriting); this is plainly too little information for the majority. But evidently the prosecutor need not have advance knowledge of the details that he is interested in. See Maj. at 580. Somewhere in that range is an imaginary line which, unlike the equator, can never be fixed or defined with clarity. Henceforth, therefore, the operational meaning of the “act of production” doctrine in our circuit will largely turn on district courts’ discretion in this metaphysical classification of prosecutors’ knowledge.
Though recognizing that no other court has applied its mind/body distinction explicitly, the majority claims that the existing lower-court cases can be lined up to fit. If so, this seems to me only because the factual detail of the cases is so skimpy and the majority’s test so elastic. And to the extent that the cases can fairly be viewed as embracing the majority’s readiness to squeeze production immunity into a simple “foregone conclusion” analysis, they miss the point. “Foregone conclusion” is just one species of one part of the doctrinal structure the Supreme Court has set out; the majority’s obsession with that phrase diverts its focus from the key issue, the presence (or absence) of “testimonial” incrimination.
Let us return to blood and handwriting, the contexts for the key decisions underlying *602 Fisher . Of course live humans have blood; of course literate humans have handwriting. These propositions are virtually true by definition. But the interesting data from blood and handwriting samples — blood type, DNA information, handwriting idiosyncrasies — are characteristically unknown to the government in advance. The admissibility of these data stems not from the government’s advance knowledge of the obvious, but from two propositions: (1) the critical information extracted from the witness (DNA and blood type, handwriting idiosyncrasies) is non-testimonial in character, see Fisher, 425 U.S. at 409 , 96 S.Ct. 1569 , and (2) the prosecutor’s knowledge of the link between the witness, on the one hand, and the blood and the handwriting, on the other, is independent of the communications that are implicit in the witness’s giving blood or handwriting. Here, similarly, the documents’ informational content (the equivalent of the DNA, etc.) is non-testimonial in character, and the Independent Counsel is interested in the documents’ link to the witness only insofar as it is shown by the contents of the documents.
Sensibly construed, the act of production doctrine shields 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. See DOJ Amicus Br. at 42; Alito, supra, at 59-60. The prosecutor would in such a case not be able to identify, verify someone’s control over, or authenticate the documents except to the extent their own contents — or other sources — did so. He would thus make no use of any testimonial aspect of the act of production. Yet, like DNA and handwriting idiosyncrasies, the contents would themselves be unprotected, except to the extent that deciphering might depend on the context of the subpoena — the information conveyed by the suspect’s implicit matching of them with the subpoena description.
This distinction between contents and production is apparently missed by the majority. Its first hypothetical of the murder weapon claims that this “manna from heaven” theory would allow the government to compel a suspect “to incriminate himself verbally” by revealing the location of the murder weapon. But in the majority’s hypo, the weapon is obviously the fruit of poisoned testimony: a revelation under compulsion. A more apt instance would be if a suspect had previously — without compulsion — written down the location in his day planner, and the government subpoenaed the planner. The production of the day planner, like the production of a missing child, is compulsory but non-testimonial. The much more harmful contents are obviously testimonial, but they are not the fruit of any unlawful compulsion (so long as the government’s use is independent of the context of the subpoena). 2
On remand the only question should be whether the Independent Counsel complied with the limits set by the above principle. Accordingly, I dissent on this issue.
. The majority appears to believe that this fact — • the match of the child produced to the child sought — was a "foregone conclusion” because "presumably his social worker could testify as to his identity.” Maj. at 574 n.27. This indicates either that the majority’s definition of "foregone conclusion” includes things that only become apparent after the production itself — in which case the majority has no reason to disagree with this opinion — or that the majority believes that there is some way in which one can "readily establish” the identity of a person or thing that cannot yet be inspected.
. The majority's second hypothetical, see Maj. at 584-585, is too imprecise to bear much analysis, but if it posits that the government in fact relies upon the communication implicit in the defendant's delivery of the murder weapon to link it to him, then that weapon must of course be excluded. Moreover, the hypothetical subpoena might well be invalid for being "unreasonable or oppressive,” Fed.R.Crim.P. 17(c) — a defect unrelated to self-incrimination.