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Doe v. United States

Supreme Court of the United States · 1988 · Criminal Procedure

Criminal ProcedureFifth AmendmentSelf-IncriminationFifth AmendmentSelf-Incrimination Clausetestimonial communicationact of productionconsent directive

Facts

Doe was the target of a federal grand jury investigation into possible offenses involving suspected fraudulent manipulation of oil cargoes and unreported income. After Doe produced some records but invoked the Fifth Amendment when asked about additional records, the Government subpoenaed the United States branches of three foreign banks, which refused to produce records because of foreign bank-secrecy laws. The Government then sought an order compelling Doe to sign a revised consent directive authorizing any bank where he might have an account, or where a corporation had an account on which he was authorized to draw, to disclose records, while expressly not acknowledging that any such accounts existed. Doe refused to sign after the order was entered, leading to the contempt ruling.

Issue

Does a court order compelling the target of a grand jury investigation to execute a foreign-bank consent directive, drafted so that it does not identify specific accounts or acknowledge their existence and states that it is executed pursuant to court order, violate the Fifth Amendment privilege against self-incrimination? More specifically, is the compelled execution of that directive a testimonial communication?

Rule

The Fifth Amendment protects a person only against compelled testimonial communications that are incriminating. A communication is testimonial only if it explicitly or implicitly relates a factual assertion or discloses information; therefore, compelled execution of a consent directive is not protected when neither the directive nor the act of signing it acknowledges the existence of accounts, control over them, authenticity of records, or any other factual matter, but merely authorizes banks to disclose records if they believe the accounts are the signer's.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

A federal grand jury in Miami is investigating Evan Mercer for tax crimes. A district court orders Evan to sign a directive stating that any bank or trust company where he may have an account, or where a company account may exist on which he may draw, may disclose records to the grand jury; the form says it is executed pursuant to court order and names no bank or account.

Evan refuses, arguing that signing the directive would violate the Fifth Amendment because the records could incriminate him. How should the court rule?

Explanation. The Fifth Amendment applies only to compelled testimonial communications that are incriminating. Under the majority's rule, a communication is testimonial only if it explicitly or implicitly relates a factual assertion or discloses information. A hypothetical consent directive executed under court order, naming no bank or account and not acknowledging existence, control, or authenticity, is not testimonial even if the records later obtained might be incriminating.