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Law School Case Brief

Fisher v. United States - 425 U.S. 391, 96 S. Ct. 1569 (1976)


U.S. Const. amend. V does not independently proscribe the compelled production of every sort of incriminating evidence, but applies only when the accused is compelled to make a testimonial communication that is incriminating.


In two separate cases, following notice of investigation of possible civil or criminal liability under federal tax laws, the clients obtained documents relating to the preparation of their tax returns by their accountants. The clients transferred the documents to their lawyers. The Internal Revenue Service served summonses on the attorneys for production of the documents. The attorneys contended that enforcement of the summonses would involve compulsory self-incrimination of the clients in violation of the Fifth Amendment. The summonses were enforced by the district court. The United States Court of Appeals for the Fifth Circuit reversed in pertinent part, holding that under the Fifth Amendment, the documents would have been privileged if production had been sought from the taxpayer while he retained possession of the documents, and that in light of the confidential nature of the attorney-client relationship, the taxpayer retained constructive possession of the evidence and thus, retained Fifth Amendment protection.


Did the enforcement of the summonses against the taxpayers’ attorneys violate the taxpayers’ Fifth Amendment privilege against self-incrimination?




The United States Supreme Court held that the enforcement of the summonses against the taxpayers' attorneys did not violate the taxpayers' Fifth Amendment privilege against self-incrimination; such enforcement did not "compel" the taxpayers to be "witnesses" against themselves, and did not deprive them of any privilege not to be compelled to testify and not to be compelled to produce private papers in their personal possession. Moreover, the Court averred that although the attorney-client privilege applied to documents in an attorney's hands that would have been privileged in his client's hands by reason of the Fifth Amendment privilege against self-incrimination, the attorney-client privilege did not bar enforcement of the summonses. Where the taxpayers, if production of the documents had been sought from them, could not have invoked the Fifth Amendment privilege against self-incrimination, even though by producing the documents the taxpayers would have tacitly conceded their existence, the taxpayers' acts of producing the documents would not have involved testimonial self-incrimination within the protection of the Fifth Amendment.

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