Doe v. United States
101 L. Ed. 2d 184, 1988 U.S. LEXIS 2869, 487 U.S. 201 (1988)
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Rule of Law:
A court order compelling a person to sign a consent directive authorizing foreign banks to disclose account records does not violate the Fifth Amendment privilege against self-incrimination if the directive is not testimonial in nature, meaning it does not, explicitly or implicitly, relate a factual assertion or disclose information.
Facts:
- John Doe was the target of a federal grand jury investigation into fraudulent oil cargo manipulations and unreported income.
- The investigation involved potential accounts at three named banks in the Cayman Islands and Bermuda, which have bank-secrecy laws.
- Doe was subpoenaed to produce records from these accounts, but after producing some, he invoked his Fifth Amendment privilege against self-incrimination regarding the existence or location of additional records.
- The foreign banks were also subpoenaed but refused to produce records, citing local bank-secrecy laws that prohibit disclosure without the customer's consent.
- The government then sought a court order to compel Doe to sign a revised, general consent form.
- This form directed any bank to disclose records for any account over which Doe might have a right of withdrawal, but it did not identify any specific accounts or acknowledge that any such accounts existed.
Procedural Posture:
- The U.S. Government filed a motion in the U.S. District Court for the Southern District of Texas to compel John Doe to sign consent forms for the release of foreign bank records.
- The District Court denied the government's motion, finding that signing the forms would be a testimonial act.
- The government sought reconsideration with a revised, more general consent directive, which the District Court also denied.
- The government (appellant) appealed to the U.S. Court of Appeals for the Fifth Circuit.
- The Fifth Circuit reversed the District Court, holding that the directive did not have testimonial significance.
- On remand, the District Court ordered Doe to execute the directive.
- Doe refused to sign and the District Court held him in civil contempt.
- Doe (appellant) appealed the contempt order to the Fifth Circuit, which affirmed its prior ruling.
- The U.S. Supreme Court granted certiorari to resolve a conflict among the circuit courts.
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Issue:
Does a court order compelling a target of a grand jury investigation to sign a consent directive, which authorizes foreign banks to disclose records of any accounts over which he may have control without acknowledging the existence of such accounts, violate the target’s Fifth Amendment privilege against self-incrimination?
Opinions:
Majority - Justice Blackmun
No, a court order compelling the signing of the consent directive does not violate the target's Fifth Amendment privilege against self-incrimination. The privilege protects a person only against compelled testimonial communications. For a communication to be testimonial, it must itself, explicitly or implicitly, relate a factual assertion or disclose information from the accused's mind. Here, the carefully drafted consent form is not testimonial because neither the form itself nor the act of signing it communicates any facts. It does not acknowledge the existence of any foreign bank account, assert control over any such account, or authenticate any records. Because the form states it is being signed under court order, the act of signing does not reveal Doe's actual intent or state of mind, but merely directs a third party to act. This is a non-testimonial act, analogous to providing a handwriting or voice exemplar, and therefore falls outside the protection of the Fifth Amendment.
Dissenting - Justice Stevens
Yes, the court order violates the target's Fifth Amendment privilege against self-incrimination. Compelling a person to sign a directive that purports to authorize action by others forces him to use his mind to assist the prosecution, which is fundamentally different from the forced production of physical evidence like a fingerprint. The act of signing the directive creates a new piece of evidence that did not previously exist and communicates a reasoned decision to authorize the release of records. This compelled directive can be used at trial to link the defendant to any documents the banks produce. This forces the defendant 'to be a witness against himself,' violating the core protection of the Fifth Amendment, which safeguards the 'realm of human thought and expression' from government compulsion.
Analysis:
This decision significantly clarifies the scope of 'testimonial communication' under the Fifth Amendment, particularly in the context of international financial investigations. By finding that a carefully drafted, non-factual consent directive is not testimonial, the Court provided the government with a powerful tool to circumvent foreign bank secrecy laws. The ruling narrows the practical application of the privilege by distinguishing between compelled acts that reveal the contents of a person's mind (protected) and those that merely facilitate the production of evidence from a third party (unprotected). This precedent forces lower courts to scrutinize the specific wording of such directives to determine if they implicitly communicate factual admissions.
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