FindLaw Criminal Law Summaries

FIFTH AMENDMENT SELF-INCRIMINATION — ACT OF PRODUCTION DOCTRINE

Case: United States v. Hubbell

Issue: (1) Does the Fifth Amendment privilege against self-incrimination protect a witness from being compelled to disclose the existence of incriminating documents that the government is unable to describe with reasonable particularity? (2) If the witness produces such documents pursuant to a grant of immunity, does 18 U.S.C. § 6002 prevent the government from using the documents to prepare criminal charges against the witness?

Facts: Independent Counsel Kenneth Starr served respondent Webster Hubbell (who was then incarcerated as a result of his guilty plea to mail fraud and tax fraud charges) with a subpoena duces tecum "calling for the production of 11 categories of documents before a grand jury sitting in Little Rock, Arkansas." Hubbell invoked his Fifth Amendment privilege against self-incrimination before the grand jury. He refused to produce the documents and refused "to state whether there are documents within my possession, custody, or control responsive to the Subpoena." Acting pursuant to 18 U.S.C. § 6003(a), the United States District Court directed Hubbell to respond to the subpoena and granted Hubbell immunity to the extent allowed by 18 U.S.C. § 6002. Hubbell produced 13,120 pages of documents and records and answered questions establishing that these were "all of the documents in his custody or control that were responsive to the commands in the subpoena." The contents of Hubbell’s produced documents gave the Independent Counsel information that ultimately led to a second prosecution of Hubbell. The United States District Court for the District of Columbia dismissed the second indictment "relying, in part, on the ground that the Independent Counsel’s use of the subpoenaed documents violated § 6002 because all of the evidence he would offer against respondent at trial derived either directly or indirectly from the testimonial aspects of respondent’s immunized act of producing those documents." The United States Court of Appeals for the District of Columbia vacated the judgment and remanded for further proceedings. "The majority concluded that the District Court had incorrectly relied on the fact that the Independent Counsel did not have prior knowledge of the contents of the subpoenaed documents." The proper standard instead "was the extent of the Government’s independent knowledge of the documents’ existence and authenticity, and of respondent’s possession or control of them." The Court of Appeals held that "[s]hould the Independent Counsel prove capable of demonstrating with reasonable particularity a prior awareness that the exhaustive litany of documents sought in the subpoena existed and were in Hubbell’s possession, then the wide distance evidently traveled from the subpoena to the substantive allegations contained in the indictment would be based upon legitimate intermediate steps." In dissent, Judge Stephen Williams distinguished "between the contents of the documents and the limited testimonial significance of the act of producing them." He felt that the prosecutor should be allowed to "make use of information contained in the documents or derived therefrom" as long as the prosecutor could do so "without any reference to the fact that respondent had produced them in response to a subpoena." In William’s view, "act of production" immunity only protected "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.’" Upon remand, the Independent Counsel (acknowledging inability to satisfy the "reasonable particularity" standard of the Court of Appeals) entered into a conditional plea with Hubbell. The agreement provided for dismissal of the charges against Hubbell unless the Supreme Court’s "disposition of the case makes it reasonably likely that respondent’s ‘act of production immunity’ would not pose a significant bar to his prosecution." The agreement provided "for the entry of a guilty plea and a sentence that will not include incarceration" if the Supreme Court should reverse and issue an opinion that is sufficiently favorable to the government "to satisfy that condition."

Holding: (1) "[W]e have no doubt that the constitutional privilege against self incrimination protects the target of a grand jury investigation from being compelled to answer questions designed to illicit information about the existence of sources of potentially incriminating evidence. That constitutional privilege has the same application to the testimonial aspect of a response to a subpoena seeking discovery of those sources." (2) "Kastigar v. United States, [406 US 441 (1972)] requires that respondent’s motion to dismiss the indictment on immunity grounds be granted unless the Government proves that the evidence it used in obtaining the indictment and proposed to use at trial was derived from legitimate sources ‘wholly independent’ of the testimonial aspect of respondent’s immunized conduct in assembling and producing the documents described in the subpoena." Since the United States concedes that it cannot make such a showing, the indictment must be dismissed and the judgment of the Court of Appeals is affirmed.

Reasoning: The Court, per Justice Stevens, noted that "[t]he word ‘witness’ in the constitutional test limits the relevant category of compelled incriminating communications to those that are ‘testimonial’ in character." (Thus, criminal suspects may be forced to put on shirts, provide blood samples, give handwriting exemplars or make voice recordings because these acts, although incriminating, are not testimonial in nature.) Moreover, "a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not ‘compelled’ within the meaning of the privilege." See, Fisher v. United States, 425 US 391 (1976 ). Hubbell, therefore, "could not avoid compliance with the subpoena served on him merely because the demanded documents contained incriminating evidence, either written by others or voluntarily prepared by himself." Nevertheless, "the act of producing documents in response to a subpoena may have a compelled testimonial aspect." The "act of production" may itself implicitly communicate "statements of fact." When producing documents in response to a subpoena, "the witness . . . admit[s] that the papers existed, are in his possession or control, and were authentic." Additionally, "as was true in this case, when the custodian of documents responds to a subpoena, he may be compelled to take the witness stand and answer questions designed to determine whether he has produced everything demanded by the subpoena. The answers to those questions, as well as the act of production itself, may certainly communicate information about the existence, custody, and authenticity of the documents. Whether the constitutional privilege protects the answers to such questions, or protects the act of production itself, is a question that is distinct from the question whether the unprotected contents of the documents themselves are incriminating."

Justice Stevens noted that the United States District Court acted pursuant to 18 U.S.C. § 6002 when it entered the "order compelling respondent to produce ‘any and all documents’ described in the grand jury subpoena and granting him ‘immunity to the extent allowed by law.’" Justice Stevens further noted that in Kastigar, the Court "upheld the constitutionality of § 6002 because the scope of the ‘use and derivative-use’ immunity that it provides is co-extensive with the scope of the constitutional privilege against self-incrimination." In Kastigar, the Court "particularly emphasized the critical importance of protection against a future prosecution ‘based on knowledge and sources of information obtained from the compelled testimony.’" In Kastigar, the Court further "concluded that a person who is prosecuted for matters related to testimony he gave under a grant of immunity, does not have the burden of proving that his testimony was improperly used. Instead, we held that the statute imposes an affirmative duty on the prosecution, not merely to show that its evidence is not tainted by the prior testimony, but ‘to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.’"

The Independent Counsel maintained that he would not have to mention Hubbell’s act of production in order to prove the existence, authenticity, or custody of any of his documents at trial. The Independent Counsel also maintained that he would not even need to introduce into evidence any of the documents produced by Hubbell. The Court majority found these points irrelevant. "It is apparent from the text of the subpoena itself that the prosecutor needed respondent’s assistance both to identify potential sources of information and produce those sources. . . . Given the breadth of the description of the 11 categories of documents called for by the subpoena, the collection and production of the materials demanded was tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions. The assembly of literally hundreds of pages of material . . . is the functional equivalent of the preparation of an answer to either a detailed written interrogatory or a series of oral questions at a discovery deposition. Entirely apart from the contents of the 13,120 pages of materials that respondent produced in this case, it is undeniable that providing a catalog of existing documents fitting within any of the 11 broadly worded subpoena categories could provide a prosecutor with a ‘lead to incriminating evidence,’ or ‘a link in the chain of evidence needed to prosecute.’"

The Court, in short, rejected " the Government’s submission that respondent’s immunity did not preclude its derivative use of the produced documents because its ‘possession of the documents[was] the fruit only of a simple physical act -- the act of producing the documents’ . . . It was unquestionably necessary for respondent to make extensive use of ‘the contents of his own mind’ in identifying the hundreds of documents responsive to the requests in the subpoena. . . . The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strong box."

The Court likewise rejected the Government’s contention that Hubbell’s "act of production" was insufficiently testimonial "because the existence and possession of such records by any business man is a ‘foregone conclusion’ under our decision in Fisher . . ." In Fisher, the IRS unquestionably knew that the working papers it sought were in existence and in the custody of the tax payer’s attorney. Moreover, the papers could be independently authenticated through the tax payer’s accountant. Here, by way of the contrast, "the Government has not shown that it had any prior knowledge of either the existence or the whereabouts of the 13,120 pages of documents ultimately produced by the respondent." Thus, "[w]hatever the scope of this ‘foregone conclusion’ rationale, the facts of this case plainly fall outside of it."

In short, Hubbell’s act of producing the subpoenaed documents pursuant to an immunity order and of answering the standard custodial questions as to whether he had produced all of the requested documents, fell squarely within the ambit of Kastigar. Accordingly, the Government would have to meet the stringent Kastigar test in order to proceed to trial. This the Government was, by its own admission, unable to do.

Other Opinions: Chief Justice Rehnquist dissented adopting the reasoning of dissenting Judge Williams in the Court of Appeals opinion. Justice Thomas, joined by Justice Scalia, concurred in the Court’s opinion, but suggested that the Court’s modern definition of "witness" in its Fifth Amendment jurisprudence is inconsistent with the framers’ intent. Thomas noted that at the time of the founding the term "witness" referred to "a person who gives or furnishes evidence, a broader meaning than that which our case law currently ascribes to the term. If this is so, a person who responds to a subpoena duces tecum would be just as much a ‘witness’ as a person who responds to a subpoena ad testificandum." Thomas strongly suggested that he would overrule Fisher and return to the jurisprudence of Boyd v. United States, 116 US 616 (1886). Since none of the parties had "asked us to depart from Fisher" Thomas did not explicitly state that he would overrule it. Nevertheless, he remains "open to a reconsideration of that decision and its progeny in a proper case."

Comment: Whether or not Fisher is explicitly overruled, Hubbell severely restricts it. Except in cases where the Government can establish that it already knows the existence, custody and authenticity of a particular set of subpoenaed documents, the mere act of producing documents compelled under the authority of § 6002 will render subsequent prosecution of the witness who produces them highly problematic. This is a very significant opinion, but it is not at all clear that the Court realized the full import of what it was doing. As in Apprendi, also decided this term, the Court will almost certainly need to revisit and further explicate its ruling.

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