The Fifth Amendment to the U.S. Constitution states that:
|“||No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.||”|
Known in common parlance as "pleading the Fifth," this right against self-incrimination protects a defendant from the "cruel trilemma" of offering incriminating evidence against oneself and risking a criminal conviction; lying to government officials and risking perjury; or keeping silent and risking contempt of court.
At one point, the Fifth Amendment was read to protect the compelled disclosure of any incriminating papers. However, later cases held that a "person may be required to produce specific documents even though they contain incriminating assertions of fact" so long as the creation of the document was not compelled by the government. Thus, under the modern interpretation of the Fifth Amendment, the following elements must be met for a Fifth Amendment privilege to be successfully asserted: (1) the statement must have been compelled by the government, (2) it must be incriminating, and (3) it must be testimonial. The first two elements of a self-incrimination claim — compulsion and the incriminating nature of the documents — are rarely in question. Rather, most cases in this area concern whether a given statement should be considered "testimonial."
"Testimonial" and the "act of production" doctrine
The U.S. Supreme Court has held that a statement is "testimonial" when the government compels the individual to use the contents of his own mind to explicitly or implicitly communicate some statement of fact. The Fifth Amendment does not, however, protect documents existing before the government's request, as any incriminating statements contained in the document could not be said to be "compelled" by the government, for such a request came after the statement was uttered. For example, even if an individual has an incriminating item on his smartphone — say, a text message or photo that links the user to a crime — that person cannot claim a Fifth Amendment privilege from handing it over to the government on the basis that the document is incriminating. While the content of the documents might not trigger a Fifth Amendment privilege, the act of producing that record may have testimonial implications of its own, meaning the act could communicate a statement of fact to the government. This is known as the "act of production" doctrine.
The act of production doctrine originated in the 1976 case Fisher v. United States in which the Internal Revenue Service (IRS) had requested certain tax documents from the lawyers of two taxpayers. The Court noted that "the Fifth Amendment would not be violated by the fact alone that the papers on their face might incriminate a taxpayer, for the privilege protects a person only against being incriminated by his own compelled testimonial communications." Because the documents were created voluntarily, the Court held that they could not be considered "compelled testimonial evidence." Accordingly, the taxpayer "could not avoid compliance with the subpoena merely by asserting that the item of evidence which he is required to produce contains Incriminating evidence, whether his own or that of someone else." But, the Court observed that "[t]he act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced.
Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer." The Court noted, however, that implicitly admitting the "existence and possession" of the papers by complying with the subpoena — the only possible testimonial aspects of disclosing these documents — should not be considered testimonial when the "existence and location" of the papers were a "foregone conclusion." Put another way, because the IRS already knew the existence and location of the documents, the taxpayer's disclosure of those documents would not implicitly relay any incriminating fact to the government. This is known as the "foregone conclusion" exception to the act of production doctrine.
"Foregone conclusion" exception
The “foregone conclusion” exception to the act of production doctrine was elaborated on in the 2000 case United States v. Hubbell, which concerned the investigation of potential federal criminal violations relating to the Whitewater Development Corporation. There, the Independent Counsel served the defendant with a subpoena requesting 11 categories of documents. Appearing before the grand jury, the defendant asserted his Fifth Amendment privilege against self-incrimination and refused to state whether he was in control or possession of any of the documents requested in the subpoena. The prosecutor then produced an order, previously obtained from the district court pursuant to 18 U.S.C. §6003, a federal immunity statute, directing the defendant to respond to the subpoena and granting him immunity "to the extent allowed by law." The defendant produced 13,120 pages of documents, which ultimately provided the Independent Counsel sufficient information to secure an indictment. The district court dismissed the indictment because all of the evidence that would have been offered against the defendant at trial derived either directly or indirectly from the testimonial aspects of his immunized act of producing those documents.
On appeal, the government claimed that the act of producing ordinary business records was insufficiently "testimonial" because the existence and location of the documents sought was a "foregone conclusion." Rejecting this argument, the Court noted that government did not have "prior knowledge of either the existence or the whereabouts of the 13,120 pages of documents" produced by the defendant. It was not enough, the Court continued, that a businessperson "will always possess business and tax records." Moreover, the Court found that it would be "unquestionably necessary for [the defendant] to make extensive use of the 'contents of his own mind' in identifying the hundreds of documents responsive to the request in the subpoena." Ultimately, the Court concluded the act of producing these records was testimonial, at least with respect to the existence and location of the documents.
After Hubbell and Fisher, determining whether an act of production is testimonial appears to depend largely on "the government's knowledge regarding the documents before they are produced." In Fisher, the government knew of the existence of the tax documents in question when it made its demand. In Hubbell, however, the government could not demonstrate its knowledge of the existence and location of the documents it sought. The government need not "have actual knowledge of the existence of each and every responsive document." The majority of circuit courts have held, nonetheless, that the government must establish its knowledge of the existence, possession, and authenticity of the requested documents with "reasonable particularity." "It is the government's knowledge of the existence and possession of the actual documents," the Ninth Circuit has noted, and "not the information contained therein, that is central to the foregone conclusion inquiry."
In addition to the foregone conclusion exception, the Supreme Court has held that certain physical acts are not considered testimonial for purposes of the Fifth Amendment. For instance, giving a blood sample or providing a voice exemplar have not been considered testimonial as they do not require the suspect "to disclose any knowledge he might have," or "to speak his guilt." Put another way, it is "extortion of information from the accused; the attempt to force him to disclose the contents of his own mind, that implicates the Self–Incrimination Clause."
- Doe v. United States, 487 U.S. 201, 212 (1988) (full-text) (quoting Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52, 84 (1988) (full-text)).
- Boyd v. United States, 116 U.S. 616, 634-35 (1886) (full-text).
- United States v. Hubbell, 530 U.S. 27, 35-36 (2000) (full-text).
- Doe v. United States, 487 U.S. at 208 n.6 (noting that "'compelled testimony' need not itself be incriminating if it would lead to the discovery of incriminating evidence").
- Doe, 487 U.S. at at 210.
- Fisher v. United States, 425 U.S. 391 (1976) (full-text).
- See United States v. Hubbell, 530 U.S. 27, 40 (2000) (full-text) ("The 'compelled testimony' that is relevant in this case is not to be found in the contents of the documents produced in response to the subpoena. It is, rather, the testimony inherent in the act of producing those documents.").
- 425 U.S. 391 (1976) ([full-text).
- Id. at 409.
- Id. at 409-10.
- Id. at 410.
- Id. at 411.
- Hubbell, 530 U.S. at 29.
- Id. at 31.
- Id. at 44.
- Id. at 45.
- Id. at 45.
- Id. at 43.
- See United States v. Ponds, 454 F.3d 313, 320 (D.C. Cir. 2006) (full-text).
- Hubbell, 530 U.S. at 44-45.
- In re Grand Jury Subpoena Dated April 18, 2003, 383 F.3d 905, 910 (9th Cir. 2004) (full-text).
- See Ponds, 454 F.3d at 321-22; In re Grand Jury Subpoena, 383 F.3d at 910; In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1346 (11th Cir. 2012) (full-text); In re Grand Jury Subpoena Duces Tecum, 1 F.3d 87 (2d Cir. 1993) (full-text).
- In re Grand Jury Subpoena, 383 F.3d at 910 (emphasis added).
- Schmerber v. California, 384 U.S. 757, 764-65 (1966) (full-text).
- United States v. Dionisio, 410 U.S. 1, 7 (1973) (full-text).
- Does v. United States, 487 U.S. 201, 211 (1988) (full-text).
- Id. at 211.