Does immunity granted really equal immunity received?

• Jurisdiction: United States
• Author: McLennan, Ryan
• Date: 01 January 2001

United States v. Hubbell, 120 S. Ct. 2037 (2000)

1. INTRODUCTION

   In United States v. Hubbell,(1) the United States Supreme Court addressed whether the act of producing business records under a subpoena qualified as testimonial evidence.(2) The Court held that the act was testimonial and, therefore, the prosecution unlawfully obtained an indictment based on documents that were part of compelled production.(3)

   The majority opinion identified two issues within the case:

   (1) Whether the Fifth Amendment privilege protects a witness from being compelled to disclose the existence of incriminating documents that the government is unable to describe with reasonable particularity; and (2) if the witness produces such documents pursuant to a grant of immunity, whether 18 U.S.C. [sections] 6002 prevents the Government from using them to prepare criminal charges against him.(4) The Court decided that the Fifth Amendment does, in fact, protect documents produced under those circumstances and that the government violated the witness's immunity by using them to prepare an indictment against him.(5) This Note examines the growth of the approaches the Court used to address these questions. This Note first argues that the Court correctly decided both of these issues. However, while the Court's analysis of Fifth Amendment protection produced the correct result, the test it used is problematic. The concurring opinion put forth a clearer, although broader, rule for determining if evidence is protected by the Fifth Amendment.(6) Additionally, this Note asserts that not only did the Court properly decide the issue of immunity, it did so following the clear, bright-line rule established in Murphy v. Waterfront Commission.(7) Following this rule will enable future cases to be more easily decided.

2. BACKGROUND

   1. HISTORY OF THE FIFTH AMENDMENT

      The Fifth Amendment protects against the self-incrimination of a defendant by providing that "[n]o person ... shall be compelled in any criminal case to be a witness against himself."(8) Though incorporated into one of the original amendments in the Bill of Rights in 1791,(9) the privilege against self-incrimination dates back to the thirteenth century.(10)

      The first well-documented case involving the protection against self-incrimination came in England in 1637.(11) In that year, John Lilburne was arrested for "having sent seditious books from Holland to England."(12) Lilburne was taken before a clerk of the attorney-general and forced to answer questions about his background and current actions.(13) Lilburne eventually refused to answer further questions regarding his past activities.(14) Upon this decision, clerks informed Lilburne that everyone took an "oath ex officio," which required witnesses to testify in open court.(15) When taken before the King's Star Chamber, Lilburne again refused to take the oath.(16) Lilburne was found in contempt of the court and imprisoned.(17) After two years of imprisonment, Lilburne petitioned Parliament for his release.(18) The House of Commons voted that Lilburne's sentence was "illegal and against the liberty of the subject."(19) The House of Lords ruled similarly.(20) Shortly thereafter, the "oath ex officio" was abolished from the ecclesiastical courts,(21) thus strengthening the right to protection from self-incrimination.

      At approximately the same time that the English abolished the "oath ex officio," colonists began settling in the American Colonies. With the formation of the original states came the formal inclusion of the privilege against self-incrimination in the constitution or declaration of rights of eight of the fourteen states.(22) The colonial leaders were worried that common law protection against self-incrimination would not be enough, and therefore felt the need to include this "fundamental right" in a written constitution.(23) Each of these eight states with a bill of rights used the word "evidence" instead of the word "witness," which would create a broader scope of protection.(24)

      The framers of the Constitution recognized the importance of the self-incrimination protection doctrine and thus included it in the four proposals for the Bill of Rights.(25) As a result of these suggestions, James Madison wrote the Fifth Amendment, substituting the word "witness" for the oft-used "evidence."(26) There was very little debate, in Congress or at the state legislatures, on the inclusion of the self-incrimination privilege in the Constitution and it was adopted unanimously, which exhibits its importance.(27) What little deliberation there was suggested that "evidence" and "witness" were interchangeable.(28) However, the lack of debate also makes it difficult, and thus speculative, for scholars to analyze Madison's intentions in changing the words of the Fifth Amendment.

      Although the original intent of the framers has been hard to analyze, the courts have analyzed the Fifth Amendment in many cases. Boyd v. United States(29) is the first such case of major significance. The issue in Boyd was whether the claimants would be required to produce an invoice for twenty-nine cases of plate glass.(30) In its holding, the Court found that forcing the defendants to produce private papers and books was "compelling him to be a witness against himself."(31) Thus, the Court chose to include the production of documents within the self-incrimination protection of the Fifth Amendment.(32)

      The Supreme Court made no significant decisions involving the Fifth Amendment over the next eighty years, but it did review numerous cases. Among these cases were Schmerber v. California,(33) United States v. Wade,(34) and Gilbert v. California.(35) All three cases narrowed the scope of Fifth Amendment protection by allowing the compelled production of a blood sample,(36) a voice exemplar,(37) and a handwriting sample,(38) respectively. These decisions focused on the testimonial aspects of the evidence to determine that they were not protected under the Fifth Amendment.(39) However, none of the cases specifically defined "testimonial evidence."(40) None of these cases, however, overturned the holding of Boyd that defendants are not required to produce self-incriminating documents.(41)

      In 1976, the Supreme Court decided Fisher v. United States(42) and established a new standard for the Fifth Amendment. In Fisher, the Court determined whether the government could compel production from an accountant for his client's tax documents(43) Though the Court primarily analyzed whether the government could compel the production from the client's accountant, it also looked at the question of whether the production could be compelled of the defendants themselves)(44)

      Using the decisions in Schmerber, Gilbert, and Wade, the Fisher court held that the Fifth Amendment only protects against the production of "testimonial communication" and does not apply to "every sort of incriminating evidence."(45) It determined that the three testimonial aspects of an act of production were existence, possession, and authenticity.(46) The Court decided that producing the documents, and thereby admitting their existence and possession, would not rise to the level of testimony under the Fifth Amendment(47) The Court further noted that the tax papers requested by the government were of the kind normally prepared by accountants.(48) Therefore, the existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government's information by conceding that he in fact has the papers."(49) Since the government would have previous knowledge of the existence and location of the documents before the defendant produced the documents, the act of production would not be considered testimonial.(50) Though the Fisher Court refused to officially overrule Boyd, it distinguished Boyd on the ground that documents in question in Boyd were "private papers," whereas the documents in Fisher were not the defendant's own records.(51)

      More recently, the Supreme Court has attempted to further clarify the scope of protection under the Fifth Amendment. In United States v. Doe ("Doe I"),(52) the Court analyzed two questions: (1) whether the contents of the documents produced were privileged and (2) whether the act of producing the documents may be privileged.(53) After deciding that the records themselves were not privileged,(54) the Court held that the act of production was privileged.(55) The Court relied, in part, on the District Court's finding that the act of production entailed testimonial self-incrimination.(56) The Court ruled that production of the documents could have been compelled; however, "use" immunity would have to be granted for all potentially incriminating evidence.(57) Thus, the prosecution would be prevented from using any "incriminatory aspects of the act of production" in future prosecutions.

      In Doe v. United States ("Doe II"),(58) the government suspected the defendant was committing fraud and tax violations.(59) In order to get his bank records, the government filed a motion for the Court to require Doe to sign twelve consent forms that would give the banks authority to turn over the records to the government.(60) The Court held that self-incrimination protection under the Fifth Amendment "may be asserted only to resist compelled explicit or implicit disclosures of incriminating information. Historically, the privilege was intended to prevent the use of legal compulsion to extract from the accused a sworn communication of facts which would incriminate him."(61)

      Since the Court agreed with the Court of Appeals that no explicit or implicit factual declarations were conveyed to the government, the documents were not "testimonial"(62) and, hence, not protected under the Fifth Amendment.(63)

   2. HISTORY OF IMMUNITY UNDER 18 U.S.C. SECTIONS 6002, 6003

      The Fifth Amendment grants a right against self-incrimination, but that right is not an absolute right...