Law School Case Brief
Doe v. United States - 487 U.S. 201, 108 S. Ct. 2341 (1988)
In order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a "witness" against himself.
An individual, who was the target of a federal grand jury investigation into suspected fraudulent manipulation of oil cargoes and the receipt of unreported income, appeared before the grand jury, pursuant to a subpoena, which directed the target to produce records of transactions in accounts in three named foreign banks in the Cayman Islands and Bermuda. The target produced some materials but, when asked about additional records, invoked the Federal Constitution's Fifth Amendment privilege against self-incrimination. Meanwhile, the United States branches of the three foreign banks refused to comply with similar bank-record subpoenas, on the ground that they were prohibited from doing so by foreign bank-secrecy laws. The Federal Government then sought, in the United States District Court for the Southern District of Texas, an order which would compel the target to sign a form consenting to disclosure of his foreign bank records. After the District Court initially refused, on the ground that the Federal Government's proposal violated the target's privilege against self-incrimination, the Federal Government sought reconsideration to order the target's signature on a revised form, one which (1) purported to apply to any and all bank accounts over which the target had a right of withdrawal, without acknowledging the existence of any such account, (2) indicated that the form was being executed pursuant to a court order, and (3) stated that the form would be "construed as" consent. The District Court, however, also denied this motion and reasoned that the target's execution of the revised form (1) might lead to the uncovering and linking of the target to accounts that the grand jury did not know were in existence, (2) would admit signatory authority over the speculative accounts, and (3) would implicitly authenticate any records of any accounts provided for the banks pursuant to the consent. On appeal, the United States Court of Appeals for the Fifth Circuit reversed, and expressed the view that the target could not assert his Fifth Amendment privilege as a basis for refusing to sign the revised form, because the form did not have testimonial significance. After the District Court had ordered the target to execute the revised form, and had found him in civil contempt for refusing to do so, the Court of Appeals affirmed the contempt order.
Was the act of executing the form a "testimonial communication"?
The court affirmed finding that the act of executing the form was not a "testimonial communication" because neither the form, nor its execution, communicated any factual assertions, implicit or explicit, or conveyed any information to respondent. The form was not testimonial because it was drafted in the hypothetical and respondent was not relying upon the "truthtelling" of the directive to show the existence of foreign bank account records, and the execution had no testimonial significance because it was compelled by court order and did not admit authenticity of any records.
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