Academic journal article Journal of Criminal Law and Criminology

Foreword: Fisher Goes Quintessential on the Fishing Expedition and Hubbell Is off the Hook

Academic journal article Journal of Criminal Law and Criminology

Foreword: Fisher Goes Quintessential on the Fishing Expedition and Hubbell Is off the Hook

Article excerpt

I must confess that what first drew me to the Supreme Court's decision last term in the case against Webster Hubbell(1) was not the celebrity of the protagonist, but the Court's paraphrase of the position of Judge Williams, dissenting in part at the circuit level.(2) As Justice Stevens for the Supreme Court recounted it:

   In the opinion of the dissenting judge, the majority failed to give full
   effect to the distinction between the contents of the documents and the
   limited testimonial significance of the act of producing them. In his view,
   as long as the prosecutor could make use of information contained in the
   documents or derived therefrom without any reference to the fact that
   respondent had produced them in response to a subpoena, there would be no
   improper use of the testimonial aspect of the immunized act of production.
   In other words, the constitutional privilege and the statute conferring use
   immunity would only shield 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."(3)

This opinion states precisely how I have taught the law of implicit self-incrimination by compliance with a subpoena duces tecum--the so-called "act of production" extension of the "testimonial or communicative" boundaries of the Fifth Amendment monial or communicative" boundaries of the Fifth Amendment "privilege".(4) Ever since the progenerative case, Fisher v. United States, was decided in 1976.(5) I have carefully explained to bewildered students that the Fifth Amendment "privilege" can be asserted against a subpoena duces tecum only in the rare case where the prosecutor proposes to use the evidence of compliance with the subpoena as inculpatory in itself.(6) Seizing a document and making evidentiary use of the information it contains--directly or indirectly--may be a violation of the Fourth Amendment right to security in your papers and effects, but it is not a violation of the Fifth Amendment. Being compelled to produce a document by subpoena duces tecum--even a highly personal and incriminating document that you composed yourself--is not what is meant by being compelled to be a witness against yourself.

What drew my attention to the Hubbell decision was the fact that my clear understanding of the Fisher doctrine is exactly what was rejected by the Supreme Court, and by the nearly unanimous vote of 8-1. It is a small comfort to know that the Chief Justice (and he alone) thought that Judge Williams had it just right.(7)

What is at stake here is an obscure--if not exotic--extension of the Fifth Amendment right not to be compelled to assist in one's own conviction, with implications for the immunity doctrine, and substantial impact on the government's use of the subpoena to explore the documentary byways that may lead to criminal charges. A bit of background may be useful.

It was, of all people, Justice William Brennan who articulated the principle by which severe boundaries have been drawn on the Fifth Amendment doctrine of compelled self-incrimination.(8) Back in 1966, ten years before Fisher was decided, Brennan announced in Schmerber v. California that the Fifth Amendment "privilege" meant that one could not be compelled to be a "witness" against oneself only in the sense of providing, under duress, "testimonial or communicative evidence."(9) He quoted Justice Holmes, who rejected a Fifth Amendment objection to forcing a person to model a blouse.(10) In the quotation chosen by Justice Brennan, Holmes said the theory of the objection called for "an extravagant extension of the Fifth Amendment," and went on to say "[T]he 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 may be material. …

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