Foreword: Fisher goes quintessential on the fishing expedition and Hubbell is off the hook.

• Author: Uviller, H. Richard

I must confess that what first drew me to the Supreme Court's decision last term in the case against Webster Hubbell(1) was not the celebrity of the protagonist, but the Court's paraphrase of the position of Judge Williams, dissenting in part at the circuit level.(2) As Justice Stevens for the Supreme Court recounted it:

In the opinion of the dissenting judge, the majority failed to give full effect to the distinction between the contents of the documents and the limited testimonial significance of the act of producing them. In his view, as long as the prosecutor could make use of information contained in the documents or derived therefrom without any reference to the fact that respondent had produced them in response to a subpoena, there would be no improper use of the testimonial aspect of the immunized act of production. In other words, the constitutional privilege and the statute conferring use immunity would only shield 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."(3) This opinion states precisely how I have taught the law of implicit self-incrimination by compliance with a subpoena duces tecum--the so-called "act of production" extension of the "testimonial or communicative" boundaries of the Fifth Amendment monial or communicative" boundaries of the Fifth Amendment "privilege".(4) Ever since the progenerative case, Fisher v. United States, was decided in 1976.(5) I have carefully explained to bewildered students that the Fifth Amendment "privilege" can be asserted against a subpoena duces tecum only in the rare case where the prosecutor proposes to use the evidence of compliance with the subpoena as inculpatory in itself.(6) Seizing a document and making evidentiary use of the information it contains--directly or indirectly--may be a violation of the Fourth Amendment right to security in your papers and effects, but it is not a violation of the Fifth Amendment. Being compelled to produce a document by subpoena duces tecum--even a highly personal and incriminating document that you composed yourself--is not what is meant by being compelled to be a witness against yourself.

What drew my attention to the Hubbell decision was the fact that my clear understanding of the Fisher doctrine is exactly what was rejected by the Supreme Court, and by the nearly unanimous vote of 8-1. It is a small comfort to know that the Chief Justice (and he alone) thought that Judge Williams had it just right.(7)

What is at stake here is an obscure--if not exotic--extension of the Fifth Amendment right not to be compelled to assist in one's own conviction, with implications for the immunity doctrine, and substantial impact on the government's use of the subpoena to explore the documentary byways that may lead to criminal charges. A bit of background may be useful.

It was, of all people, Justice William Brennan who articulated the principle by which severe boundaries have been drawn on the Fifth Amendment doctrine of compelled self-incrimination.(8) Back in 1966, ten years before Fisher was decided, Brennan announced in Schmerber v. California that the Fifth Amendment "privilege" meant that one could not be compelled to be a "witness" against oneself only in the sense of providing, under duress, "testimonial or communicative evidence."(9) He quoted Justice Holmes, who rejected a Fifth Amendment objection to forcing a person to model a blouse.(10) In the quotation chosen by Justice Brennan, Holmes said the theory of the objection called for "an extravagant extension of the Fifth Amendment," and went on to say "[T]he prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material."(11) In other words, as Brennan described the "privilege," no one can be forced to divulge cerebral evidence, to speak the contents and products of the mind. Here's how Justice Brennan expressed the principle in Schmerber.

[T]he privilege has never been given the full scope which the values it helps to protect suggest. History and a long line of authorities in lower courts have consistently limited its protection to situations in which the State seeks to submerge those values by obtaining the evidence against an accused through "the cruel, simple expedient of compelling it from his own mouth." ... [T] he privilege is a bar against compelling "communications" or "testimony," but that compulsion which makes a suspect or accused the source of "real or physical evidence" does not violate it.(12) From this emphasis on evidence pried from the clamped jaws of a potential defendant, one might have thought that the production of a previously-made document under compulsion of court order (though its contents be autobiographical and its import be inculpatory) is of no concern to the Fifth Amendment. Like any other physical evidence, the document may be produced by compulsion so long as it was not created by compulsion. But it should be remembered that the evidence at issue in Schmerber was blood, forcibly extracted for chemical analysis of alcohol content.(13) It was not a document, and Brennan was careful to note that while, as Holmes had held before him, the Fifth Amendment "privilege" does not protect the body or its fluids, it may apply to past and recorded expressions of the mind.(14) Thus, he wrote (with one of those exasperating claims to clarity): "It is clear that the protection of the privilege reaches an accused's communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers."(15)

Brennan's initial exemption for written communications (not compelled communications when made, but surrendered under compulsion of subpoena) made sense. Indeed, there are some, including the concurring Justices in Hubbell, to whom it still makes sense.(16) A priori, and ignorant or dismissive of contrary judicial precedent, one might easily be tempted (along with my students) to believe that being compelled (by court process or otherwise) to furnish previously-expressed cerebral evidence that might be used in securing a conviction violates the explicit terms of the Fifth Amendment: not to be compelled to be a witness against oneself.

But Justice Brennan did not rely on intuition. He had respected authority for his inclusion of recorded declarations in the category of testimonial evidence compelled from the witness' own mouth. He relied exclusively on an old and venerable case called Boyd v. United States.(17) That case, decided in 1886, held that the Fifth Amendment "privilege" and the rights to security under the Fourth Amendment overlapped, such that invasions of privacy might at the same time amount to compulsory self-incrimmation.(18) In one of its most frequently quoted passages, the Court in Boydwrote: "[W]e have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself."(19)

Brennan's allocation of the Fifth Amendment "privilege" to the realm of "testimonial and communicative" evidence has endured; his Boyd exception has not. Boyd itself was shot down more than once, only to rise again like a Phoenix.(20) However, unless Hubbell has stirred new life in the creature, several cases have corrected Brennan's initial take on the status of freely recorded verbal evidence. And today, or until Hubbell, I think most commentators would be willing to say unequivocally (with Justice Sandra Day O'Connor)(21) that documents are more like body fluids or the keys to the padlock than they are like live testimony or the padlock's memorized digital code.(22) Perhaps the factual backdrop of the Hubbell drama should be painted in at this point to set the scene. Then I will attempt to flesh out these esoteric doctrines to see whether the Court has distorted the fragile distinction or incurred any pragmatic grief.

In the fall of 1994, Kenneth Starr, the Independent Counsel (IC hereafter), was investigating the financial affairs of the Whitewater Development Corporation, and more particularly the possible involvement of President Clinton therein. Out of this investigation came an indictment against presidential friend, Webster Hubbell, for mail fraud and tax evasion arising out of the billings of his Arkansas law firm. In December 1994 he pleaded guilty and received a sentence of twenty-one months. As part of the plea agreement, Hubbell undertook to cooperate in the Whitewater investigation. In October 1996, while Hubbell was doing his time, the IC served him with a subpoena calling for the production of documents in eleven categories before the Little Rock grand jury. When Hubbell appeared before the grand jury the following month, he asserted his privilege against self-Incrimination.(23) He did not assert the privilege because the contents of the documents might be inculpatory, but rather on the contention that the act of compliance with the subpoena itself might have adverse penal consequences. He also refused on the same ground to answer questions about whether he had documents answering the description in the subpoena within his custody or control.

The government, prepared for this move, immediately produced a previously obtained court order directing a response, and granting such immunity as allowed by law. Hubbell thereupon produced over 13,000 pages of documents, and responded to questions to the effect that these were all the documents in his possession answering the subpoena's description, save a few exempted by attorney-client privilege. The contents of these...