A Sketch of Supreme Court Recognition of Fifth Amendment Protection for Acts of Production

Publication Date: January 2004

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Justice

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Abstract:

The Fifth Amendment to the United States Constitution declares in pertinent part that, "No person . . . shall be compelled in any criminal case to be a witness against himself." The United States Supreme Court has pointed that acts of production may fall within of the Fifth Amendment privilege against self-incrimination under some circumstances. To do so they must satisfy the privilege's general demands that require a (1) personal, (2) governmentally compelled, (3) incriminating, (4) testimonial, (5) communication.

The act of production doctrine is easily misunderstood for a number reasons. First, the protected communication is most often implicit. The privilege covers an individual's actions rather than his speech or writing, yet many incriminating actions such as providing a blood sample or a handwriting sample are ordinarily not protected because they are not testimonial. Second, no bright line divides communications that are testimonial from those that are not. Third, the privilege sometimes protects the act of producing existing documents which by themselves are not protected because they were originally prepared voluntarily. Fourth, the privilege protects not only intrinsically incriminating communications but also those that form a link in the chain of incrimination. Some of the uncertainty can be dissipated by a close examination of the facts and views of the Court in the cases where the issue has arisen.

The Supreme Court has recognized a claim of privilege in two act of production cases, Doe I and Hubbell. Both cases involved sweeping subpoenas which demanded that individuals engage in the mental exercise of identifying, collecting, and organizing documents that incriminated them or that lead to incriminating evidence. This report is an abridged version -- without footnotes -- of CRS Report RL32184, Supreme Court Recognition of Fifth Amendment Protection for Acts of Production.