A Sketch of Supreme Court Recognition of Fifth Amendment Protection for Acts of Production
CRS Report for Congress
A Sketch of Supreme Court Recognition of
Fifth Amendment Protection for Acts of
Production
Charles Doyle
Senior Specialist
American Law Division
Summary
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 self-incrimination 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 arisen.
The Supreme Court has recognized a claim of privilege in two act of production
cases, Doe I and Hubbell. Both cases involved sweeping subpoenas which demanded
that individuals engage in the mental exercise of identifying, collecting, and organizing
documents that incriminated them or that lead to incriminating evidence. This report
is an abridged version – without footnotes – of CRS Report RL32184, Supreme Court
Recognition of Fifth Amendment Protection for Acts of Production.
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
Congressional Research Service ˜ The Library of Congress
within of the Fifth Amendment privilege against self-incrimination 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 arisen.
The act of production 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 traffic accident.
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 410.
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 an 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-
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.
Finally in United States v. Doe (Doe I), 465 U.S. 605 (1984), the Court encountered
a case where the act of production was appropriately claimed. A federal grand jury
investigating possible corruption relating to municipal contracts served a sweeping series
of five subpoenas upon Doe demanding business records of five sole proprietorships
under which Doe apparently did business. 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 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,
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.
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 self-incrimination,” 465 U.S.
at 613.
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.
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 entity records addressed
to their custodial representatives, although the act of production may afford the custodial
individual protection.
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 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 purposes.
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; 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.
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 clueless.
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 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 42-3
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.