United States Reports, Volume 530: Cases Adjudged in The Supreme Court at October Term, 1999 Page: 28
lxxv, 1-913, 1001-1216 p.View a full description of this book.
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UNITED STATES v. HUBBELL
Syllabus
Held: The indictment against respondent must be dismissed. Pp. 34-46.
(a) The Fifth Amendment protects a person from being "compelled
in any criminal case to be a witness against himself." The word "wit-
ness" limits the relevant category of compelled incriminating communi-
cations to those that are "testimonial." In addition, a person such as
respondent may be required to produce specific documents containing
incriminating assertions of fact or belief because the creation of those
documents was not "compelled" within the meaning of the privilege.
See Fisher v. United States, 425 U. S. 391. However, the act of produc-
ing subpoenaed documents may have a compelled testimonial aspect.
That act, as well as a custodian's compelled testimony about whether he
has produced everything demanded, may certainly communicate infor-
mation about the documents' existence, custody, and authenticity. It is
also well settled that compelled testimony communicating information
that may lead to incriminating evidence is privileged even if the infor-
mation itself is not inculpatory. Pp. 34-38.
(b) Section 6002 is constitutional because the scope of the "use
and derivative-use" immunity it provides is coextensive with the scope
of the constitutional privilege against self-incrimination. Kastigar v.
United States, 406 U. S. 441. When a person is prosecuted for mat-
ters related to immunized testimony, the prosecution has an affirmative
duty to prove that the evidence it proposes to use is derived from a
legitimate source wholly independent of that testimony. Id., at 460.
This ensures that the grant of immunity leaves the witness and the
Government in substantially the same position as if the witness had
claimed his privilege in the grant's absence. The compelled testimony
relevant here is not to be found in the contents of the documents
produced, but is the testimony inherent in the act of producing those
documents. Pp. 38-40.
(c) The fact that the Government does not intend to use the act
of production in respondent's criminal trial leaves open the separate
question whether it has already made "derivative use" of the testi-
monial aspect of that act in obtaining the indictment and preparing
for trial. It clearly has. It is apparent from the subpoena's text that
the prosecutor needed respondent's assistance both to identify poten-
tial sources of information and to produce those sources. It is undeni-
able that providing a catalog of existing documents fitting within any
of the 11 broadly worded subpoena categories could provide a prosecu-
tor with a lead to incriminating evidence or a link in the chain of evi-
dence needed to prosecute. Indeed, that is what happened here: The
documents sought by one grand jury to see if respondent had violated
a plea agreement led to the return of an indictment by another grand
jury for offenses apparently unrelated to that agreement. The testimo-
nial aspect of respondent's act of production was the first step in a chain28
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Wagner, Frank D. United States Reports, Volume 530: Cases Adjudged in The Supreme Court at October Term, 1999, book, 2001; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc158378/m1/80/: accessed April 24, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.