Academic journal article Journal of Criminal Law and Criminology

Does Immunity Granted Really Equal Immunity Received?

Academic journal article Journal of Criminal Law and Criminology

Does Immunity Granted Really Equal Immunity Received?

Article excerpt

United States v. Hubbell, 120 S. Ct. 2037 (2000)


In United States v. Hubbell,(1) the United States Supreme Court addressed whether the act of producing business records under a subpoena qualified as testimonial evidence.(2) The Court held that the act was testimonial and, therefore, the prosecution unlawfully obtained an indictment based on documents that were part of compelled production.(3)

The majority opinion identified two issues within the case:

   (1) Whether the Fifth Amendment privilege protects a witness from being
   compelled to disclose the existence of incriminating documents that the
   government is unable to describe with reasonable particularity; and (2) if
   the witness produces such documents pursuant to a grant of immunity,
   whether 18 U.S.C. [sections] 6002 prevents the Government from using them
   to prepare criminal charges against him.(4)

The Court decided that the Fifth Amendment does, in fact, protect documents produced under those circumstances and that the government violated the witness's immunity by using them to prepare an indictment against him.(5) This Note examines the growth of the approaches the Court used to address these questions. This Note first argues that the Court correctly decided both of these issues. However, while the Court's analysis of Fifth Amendment protection produced the correct result, the test it used is problematic. The concurring opinion put forth a clearer, although broader, rule for determining if evidence is protected by the Fifth Amendment.(6) Additionally, this Note asserts that not only did the Court properly decide the issue of immunity, it did so following the clear, bright-line rule established in Murphy v. Waterfront Commission.(7) Following this rule will enable future cases to be more easily decided.



The Fifth Amendment protects against the self-incrimination of a defendant by providing that "[n]o person ... shall be compelled in any criminal case to be a witness against himself."(8) Though incorporated into one of the original amendments in the Bill of Rights in 1791,(9) the privilege against self-incrimination dates back to the thirteenth century.(10)

The first well-documented case involving the protection against self-incrimination came in England in 1637.(11) In that year, John Lilburne was arrested for "having sent seditious books from Holland to England."(12) Lilburne was taken before a clerk of the attorney-general and forced to answer questions about his background and current actions.(13) Lilburne eventually refused to answer further questions regarding his past activities.(14) Upon this decision, clerks informed Lilburne that everyone took an "oath ex officio," which required witnesses to testify in open court.(15) When taken before the King's Star Chamber, Lilburne again refused to take the oath.(16) Lilburne was found in contempt of the court and imprisoned.(17) After two years of imprisonment, Lilburne petitioned Parliament for his release.(18) The House of Commons voted that Lilburne's sentence was "illegal and against the liberty of the subject."(19) The House of Lords ruled similarly.(20) Shortly thereafter, the "oath ex officio" was abolished from the ecclesiastical courts,(21) thus strengthening the right to protection from self-incrimination.

At approximately the same time that the English abolished the "oath ex officio," colonists began settling in the American Colonies. With the formation of the original states came the formal inclusion of the privilege against self-incrimination in the constitution or declaration of rights of eight of the fourteen states.(22) The colonial leaders were worried that common law protection against self-incrimination would not be enough, and therefore felt the need to include this "fundamental right" in a written constitution.(23) Each of these eight states with a bill of rights used the word "evidence" instead of the word "witness," which would create a broader scope of protection. …

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