court decides consent form was not testimonial in nature therefore obviating the necessity of court’s determining element of incrimination
How later courts described this case
- court decides consent form was not testimonial in nature therefore obviating the necessity of court’s determining element of incrimination
- "Rather, the directive merely permits the bank to disclose information relating to any accounts with respect to which the bank records indicate Ghidoni's authority to draw ( i.e. , any accounts with respect to which the bank thinks Ghidoni has authority)."
- "Rather, the directive states that if the accounts exist ...."
- similarly interpreting a nearly identical consent directive
Written by the judges who cited it.
Later courts went against this
Disagreed with by In Re Grand Jury Proceedings. Appeal of William A. Ranauro, 814 F.2d 791 (1987)
Our holding does not rest on solely on differences in the wording of the forms, however, for we disagree with the Ghidoni court’s conclusion that the consent directive contained no testimony relevant to the questions of existence of accounts in the witness’s name or of control over those accounts. 732 F.2d at 818.
The opinion
CLARK, Circuit Judge,
dissenting:
The fifth amendment condemns compelled, incriminating testimony. The majority opinion permits what is therein condemned. When the government orders an individual to produce incriminating documents in his possession, testimony may be divulged from two different sources: first, the act of producing the documents may testify as to their existence and authenticity; second, the documents themselves are unquestionably communicative and as such are testimonial. Fisher and Doe, however, teach that while the documents themselves may be testimonial, they are not entitled to *820 fifth amendment protection to the extent they were prepared voluntarily and thus were not compelled. Consequently under the factual circumstances of those cases, the exclusive focus of a court’s concern in addressing the self-incrimination aspects of an order to produce documents must be on the act of producing those documents.
In contrast, when a suspect is ordered to sign a confession or to furnish a handwriting exemplar, the focus shifts away from the act of producing the writing and toward its contents. The act of signing a confession or providing a handwriting sample does no more than communicate the truism that the author can write and that what he has provided in his handwriting. Fisher v. United States, 425 U.S. 391, 411 , 96 S.Ct. 1569, 1581 , 48 L.Ed.2d 39, 56 (1976). It is the communicative value of what is written above his signature that is important. Thus, coercing a suspect to evince his guilt by signing his name to the statement “I confess,” compels incriminating testimony and is therefore forbidden.
On the other hand, compelling a handwriting exemplar is generally permissible, insofar as the writing produced is nothing more than a non-testimonial, physical means of identification, like a fingerprint or a voice sample. Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967) (handwriting exemplar); United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (voice exemplar). Put another way, voice and handwriting samples are demonstrative rather than testimonial evidence; a suspect may even be compelled to say or write words or phrases that have independent communicative value, if it is the physical characteristics of the handwriting or voice that are sought and not the meaning of the words spoken or written. Matter of Grand Jury Proceedings, 579 F.2d 1135 (9th Cir.1978). The Supreme Court has made it clear that if the writing is sought not only for its physical characteristics but also for its content, the fifth amendment prohibits its compulsion:
[T]he Government’s petition for the order to compel production stated: “Such exemplars will be used solely as a standard of comparison in order to determine whether the witness is the author of certain writings.” If the Government should seek more than the physical characteristics of the witness’ handwriting— if, for example, it should seek to obtain written answers to incriminating questions or a signature on an incriminating statement — then, of course, the witness could assert his Fifth Amendment privilege against compulsory self-incrimination.
United States v. Mara, 410 U.S. 19, 22 , 93 S.Ct. 774, 776 , 35 L.Ed.2d 99, 103 (1973). 1
In this case, Ghidoni is not being ordered to produce documents but to sign his name, which presents a situation closer on its facts to Gilbert and Mara , the exemplar cases, than to the production of documents cases, Fisher and Doe. Ghidoni is being ordered to sign a statement authorizing any foreign bank with which he has an account to release his records to the government upon demand, records which the government could not obtain without his “consent.” The act of signing the consent form, as with a handwriting exemplar, provides the government with no more than the truism that Ghidoni can write, and that what he has furnished is his signature. On the other hand, unlike a handwriting exemplar, the contents of the “consent” form are a communication that may produce testimony that will be incriminating.
The government is seeking “more than the physical characteristics of the witness’ handwriting.” Mara, 410 U.S. at 22 , 93 S.Ct. at 776 , 35 L.Ed.2d at 103 . Rather, it is seeking to “obtain ... a signature on an incriminating document.” Id. As the consent form is worded, Ghidoni does not concede that any foreign account exists, or that any records a foreign bank may have *821 are genuine. But that is beside the point. Ghidoni is not being asked to produce bank records, and so the testimonial aspects attendant to compelling the act of producing such records, articulated in Doe, are irrelevant here. We are concerned not with the act of producing records or the act of signing a consent form, but with the substance of the consent form itself, which communicates to all banks presented with the form: “I consent to have you release any account information you deem applicable to me.” Such a statement, obtained under the circumstances presented here, constitutes compelled testimony. That testimony is unquestionably incriminating, in that it furnishes a link in a chain leading to procurement of the documents that the government intends to use to secure Ghidoni’s conviction. Hoffman v. United States, 341 U.S. 479, 486 , 71 S.Ct. 814, 815, 818 , 95 L.Ed. 1118, 1124 (1951). I do not believe that the fifth amendment tolerates compelling a criminal suspect to sign an incriminating consent form any more than it tolerates compelling him to sign a confession. I therefore dissent.
. For example, in Schmerber v. California, 384 U.S. 757, 763-64 , 86 S.Ct. 1826, 1832 , 16 L.Ed.2d 908, 915 (1966), the Court said: “It is clear that the protection of the privilege reaches an accused’s communications, whatever form they might take ..."