United States v. Doe
465 U.S. 605 (1984)
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Rule of Law:
The Fifth Amendment does not protect the contents of a sole proprietor's business records because they are created voluntarily and not under compulsion. However, the act of producing those records may be a testimonial act protected by the Fifth Amendment privilege against self-incrimination if it tacitly communicates incriminating facts such as the records' existence, possession, or authenticity.
Facts:
- Respondent is the owner of several sole proprietorships.
- In late 1980, a federal grand jury began investigating corruption in the awarding of county and municipal contracts.
- The grand jury served five subpoenas on the respondent.
- The subpoenas demanded the production of a wide range of business records from several of his companies, including telephone records, bank account records, general ledgers, journals, invoices, and bank statements.
- Some of the requested documents pertained to accounts at a bank in the Grand Cayman Islands.
Procedural Posture:
- A federal grand jury in the U.S. District Court for the District of New Jersey served five subpoenas on the respondent.
- Respondent filed a motion in the District Court to quash the subpoenas on Fifth Amendment grounds.
- The District Court granted the respondent's motion to quash for most of the requested documents.
- The United States (appellant) appealed the District Court's decision to the U.S. Court of Appeals for the Third Circuit.
- The Court of Appeals affirmed the District Court's judgment.
- The United States (petitioner) petitioned the U.S. Supreme Court for a writ of certiorari, which was granted.
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Issue:
Does the Fifth Amendment privilege against self-incrimination protect a sole proprietor from being compelled by a grand jury subpoena to produce business records when the act of production itself is testimonial and incriminating?
Opinions:
Majority - Justice Powell
Yes, the Fifth Amendment privilege against self-incrimination protects a sole proprietor from being compelled to produce business records when the act of production is testimonial and incriminating. While the contents of voluntarily prepared business records are not privileged, the act of producing them can be. The act of production communicates testimonial information, such as admitting the records' existence, their possession, and their authenticity. In this case, the lower courts found that the act of production would involve testimonial self-incrimination, a factual finding the Court declined to overturn. Therefore, the respondent cannot be compelled to produce the documents unless the government grants him formal statutory use immunity pursuant to 18 U.S.C. §§ 6002 and 6003 for the act of production itself.
Concurring - Justice O'Connor
Yes. This opinion clarifies that the Fifth Amendment provides absolutely no protection for the contents of any private papers. The Court's prior decision in Fisher v. United States sounded the 'death knell' for the outdated privacy-based rationale from Boyd v. United States, and today's decision puts a long overdue end to that concept.
Concurring - Justice Marshall
Yes, the act of producing the documents is privileged and cannot be compelled without a statutory grant of use immunity. However, the Court should not have reached the separate question of whether the contents of the documents are privileged. The Court of Appeals' judgment rested solely on the act-of-production doctrine, and this Court's practice is to review judgments, not unnecessary statements in opinions. Contrary to the concurrence, this case, which involves business records, does not resolve the question of whether other private papers, such as personal diaries, are protected.
Concurring - Justice Stevens
Yes, the judgment should be affirmed because the lower courts correctly held that the act of producing the records was privileged. The Supreme Court reviews judgments, not opinions, and since the lower courts' disposition was correct, there is no need to reverse any part of the decision. The Court's opinion is entirely consistent with the reasoning and judgment of the Court of Appeals, so the judgment should simply be affirmed, not reversed in part.
Analysis:
This case solidifies the 'act of production' doctrine established in Fisher v. United States, drawing a sharp distinction between the non-privileged contents of documents and the potentially privileged act of producing them. It effectively eliminates any remaining Fifth Amendment protection for the contents of voluntarily created business records, even for individuals like sole proprietors. The decision also clarifies the procedural requirements for overcoming this privilege, rejecting 'constructive use immunity' and mandating that the government must follow the formal statutory process to grant use immunity for the act of production before it can compel the surrender of documents.
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