United States v. Doe

Supreme Court of the United States · 1984 · Criminal Law

Criminal LawFifth AmendmentSelf-IncriminationGrand Jury SubpoenasFifth Amendmentself-incriminationsole proprietorshipbusiness records

Facts

Respondent owned several sole proprietorships and was served with five grand jury subpoenas seeking telephone records, bank records, and broad categories of business records for specified periods. The Government conceded that the materials sought were or might be incriminating. The District Court found that producing the records would compel respondent to admit the records existed, were in his possession, and were authentic. The Government stated it would not use the act of production against respondent, but it did not seek statutory use immunity under 18 U.S.C. §§ 6002 and 6003.

Issue

Does the Fifth Amendment privilege against compelled self-incrimination protect the contents of a sole proprietor's business records, and does it protect the act of producing those records in response to a grand jury subpoena absent a statutory grant of use immunity?

Rule

The Fifth Amendment does not protect the contents of voluntarily prepared business records of a sole proprietorship, because the privilege guards only against compelled testimonial self-incrimination. But the act of producing subpoenaed documents may itself be privileged when compliance would tacitly admit the documents' existence, possession or control, and authenticity, and such testimonial admissions are incriminating. When the act of production is privileged, the Government may compel production only through a statutory grant of use immunity under 18 U.S.C. §§ 6002 and 6003; courts may not create constructive use immunity absent the statutory procedure.

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

In Phoenix, Elena Torres runs a sole proprietorship called Desert Mesa Consulting. A federal grand jury subpoenas her handwritten client ledgers, which she created on her own, and the government concedes the entries may incriminate her in a fraud investigation.

Elena moves to quash on Fifth Amendment grounds solely because the ledgers' contents are incriminating. How should the court rule?

Explanation. The Fifth Amendment protects against compelled testimonial self-incrimination, not against disclosure of the contents of voluntarily prepared business records. If the witness does not claim the records were compelled when created and production does not force her to restate or affirm their truth, the contents themselves are not privileged. Statutory use immunity becomes relevant only if the act of production is privileged.