Law School Case Brief
United States v. Doe - 465 U.S. 605, 104 S. Ct. 1237 (1984)
The U.S. Const. amend. V protects the person asserting the privilege only from compelled self-incrimination. Where the preparation of business records is voluntary, no compulsion is present. A subpoena that demands production of documents does not compel oral testimony; nor would it ordinarily compel a person to restate, repeat, or affirm the truth of the contents of the documents sought.
During a federal grand jury investigation of corruption in the awarding of county and municipal contracts, subpoenas were served on respondent John Doe, which demanded the production of certain business records of several of his companies. Doe filed a motion in federal district court seeking to quash the subpoenas. The district court granted the motion (except as to records required by law to be kept or disclosed to a public agency), finding that the act of producing the records would involve testimonial self-incrimination. The court of appeals affirmed, holding that the records were privileged, that the act of producing them also would have "communicative aspects of its own" in that the turning over of the records to the grand jury would admit their existence, possession, and authenticity, and that hence Doe was entitled to assert his Fifth Amendment privilege against compelled self-incrimination rather than produce the records. The court further held that in view of the Government's failure to make a formal request for use immunity under 18 U.S.C.S. §§ 6002 and 6003, it was proper to reject the Government's attempt to compel delivery of the records. The Government was granted a writ of certiorari.
Was the Fifth Amendment privilege against self-incrimination applicable to the act of producing business records?
The Supreme Court of the United States affirmed in part and reversed in part the judgment of the court of appeals. The Court ruled that because Doe had voluntarily prepared the records, their production was not compulsory, as contemplated by the Fourth Amendment. The court refused to apply a zone of privacy to protect an individual and his personal records from compelled production. The court reiterated that it had never applied the Fourth Amendment to prevent the otherwise proper acquisition or use of evidence that did not involve compelled testimonial self-incrimination. However, the Court held that the act of production would involve tacit testimonial aspects and incriminating effect, including an admission that the records existed, that they were in Doe's control, and that they were what the subpoena described. The Court declined to implement a form of constructive use immunity to compel production, remanding instead for the Government to grant statutory immunity if desired.
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