Section 7602 of the Internal Revenue Code of 1954 authorizes the
Internal Revenue Service to summon individuals to "appear," and "to
produce such books, papers, records, or other data, and to give
such testimony," as may be relevant to a tax investigation. During
an investigation of respondent's income tax liability, in an effort
to determine whether deposits in certain bank accounts not
registered in respondent's name represented income attributable to
him, an IRS agent issued a summons requiring respondent to appear
and execute handwriting exemplars of the various signatures
appearing on the bank signature cards. When respondent refused to
comply with the summons, the United States brought suit to enforce
it. The District Court held that the summons should be enforced,
but the Court of Appeals reversed, holding that the summons
authority under § 7602 does not authorize the IRS to compel the
execution of handwriting exemplars.
Held: The IRS is empowered to compel handwriting
exemplars under its summons authority conferred by § 7602. Pp.
444 U. S.
710-719.
(a) While § 7602's language may not be explicit in authorizing
handwriting exemplars, the duty to appear and give testimony has
traditionally encompassed a duty to provide some forms of
nontestimonial, physical evidence, including handwriting exemplars.
By imposing an obligation to produce documents as well as to appear
and give testimony, § 7602's language suggests an intention to
codify a broad testimonial obligation, including an obligation to
provide some physical evidence relevant and material to a tax
investigation. From this authority to compel the production of some
physical evidence, it can properly be concluded that the authority
extends to the execution of handwriting exemplars, one variety of
physical evidence. Pp.
444 U. S.
712-714.
(b) This Court has consistently construed congressional intent
to require that, if the claimed summons authority is necessary for
the effective performance of congressionally imposed
responsibilities to enforce the Internal Revenue Code, that
authority should be upheld absent express statutory prohibition or
substantial countervailing congressional policies. Pp.
444 U. S.
714-716.
Page 444 U. S. 708
(c) The authority claimed here is necessary for the effective
exercise of the IRS's enforcement responsibilities. Handwriting
exemplars are often an important evidentiary component in
establishing liability, the use of such exemplars being an
effective method for determining whether a particular name is an
alias of a taxpayer. Pp.
444 U. S.
716-717.
(d) Moreover, the authority claimed here is entirely consistent
with the statutory language, and is not in derogation of any
countervailing policies or any constitutional rights, compulsion of
handwriting exemplars being neither a search or seizure subject to
Fourth Amendment protections nor testimonial evidence protected by
the Fifth Amendment privilege against self-incrimination. Pp.
444 U. S.
717-718.
587 F.2d 25, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ.,
joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL
and STEVENS, JJ., joined,
post, p.
444 U. S. 719.
MARSHALL, J., filed a dissenting opinion,
post, p.
444 U. S.
720.
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
The United States sued in the District Court seeking enforcement
of an Internal Revenue Service summons requiring respondent to
appear and provide handwriting exemplars. Enforcement was denied by
the Court of Appeals for the Eighth Circuit, 587 F.2d 25 (1978) (en
banc), and we granted certiorari. [
Footnote 1] 441 U.S. 942. We now hold that Congress
Page 444 U. S. 709
has empowered the IRS to compel handwriting exemplars under its
summons authority conferred by 26 U.S.C. § 7602.
I
The facts are not in dispute. In October, 1977, an agent in the
Intelligence Division of the Internal Revenue Service was assigned
to investigate respondent's income tax liability for the years 1973
through 1976. Respondent had not filed any tax returns for those
years. The Service sought to employ the "bank deposits method" of
reconstructing respondent's income for those years, as a means of
calculating his tax liability. Under this method of proof, the sums
deposited in the taxpayer's bank accounts are scrutinized to
determine whether they represent taxable income.
During the course of the investigation, the agent found only two
bank accounts registered in respondent's name. Twenty other bank
accounts were discovered, however, which the agent had reason to
believe were being maintained by respondent under aliases to
conceal taxable income. The statements for these accounts were sent
to post office boxes held in respondent's name; the signature cards
for the accounts listed addresses of properties owned by
respondent; and the agent had documented frequent transfers of
funds between the accounts.
In an effort to determine whether the sums deposited in these
accounts represented income attributable to respondent, the agent
issued a summons on October 7, 1977, requiring respondent to appear
and execute handwriting exemplars of the various signatures
appearing on the bank signature cards. Respondent declined to
comply with the summons.
The United States commenced this action under 26 U.S.C. §
7604(a). The District Court held that the summons should be
enforced, ordering respondent to provide 10 handwriting exemplars
of 8 different signatures. The Court of Appeals reversed, ruling
that the summons authority vested in the Internal Revenue Service
under 26 U.S.C. § 7602 does not
Page 444 U. S. 710
authorize the IRS to compel the execution of handwriting
exemplars. [
Footnote 2]
II
The structure and history of the statutory authority of the
Internal Revenue Service to summon witnesses to produce evidence
necessary for tax investigations has been repeatedly reviewed by
this Court in recent years.
See Reisman v. Caplin,
375 U. S. 440
(1964);
United States v. Powell, 379 U. S.
48 (1964);
Donaldson v. United States,
400 U. S. 517
(1971);
United States v. Bisceglia, 420 U.
S. 141 (1975);
Fisher v. United States,
425 U. S. 391
(1976);
United States v. LaSalle National Bank,
437 U. S. 298
(1978). Under § 7602, the Secretary of the Treasury, and therefore
the IRS as his designate, [
Footnote
3] is authorized to summon individuals to
"appear before the Secretary . . . and to produce such books,
papers, records, or other data, and to give such testimony, under
oath, as may be relevant or material to such inquiry. . . .
[
Footnote 4]"
The question
Page 444 U. S. 711
presented here is whether this power to compel a witness to
"appear," to produce "other data," and to "give testimony,"
includes the power to compel the execution of handwriting
exemplars. We conclude that it does, for several reasons. While the
language may not be explicit in its authorization of handwriting
exemplars, the duty to appear and give testimony, a duty imposed by
§ 7602, has traditionally encompassed a duty to provide some forms
of nontestimonial, physical evidence, including handwriting
exemplars. Further, this Court has consistently construed
congressional intent to require that, if the summons authority
claimed is necessary for the effective performance of
congressionally imposed responsibilities to enforce the tax Code,
that authority should be upheld absent express statutory
prohibition or substantial countervailing policies. The authority
claimed here is necessary for the effective exercise of the
Service's enforcement responsibilities; it is entirely consistent
with the statutory language; and it is not in derogation of any
constitutional rights or countervailing policies enunciated by
Congress.
Page 444 U. S. 712
A
Through § 7602, Congress has imposed a duty on persons
possessing information "relevant or material" to an investigation
of federal tax liability to produce that information at the request
of the Secretary or his delegate. That duty to provide relevant
information expressly obligates the person summoned to produce
documentary evidence and to "appear" and "give testimony."
Imposition of such an evidentiary obligation is, of course, not a
novel innovation attributable to § 7602. The common law has been
the source of a comparable evidentiary obligation for centuries. In
determining the scope of the obligation Congress intended to impose
by use of this language, we have previously analogized, as an
interpretive guide, to the common law duties attaching to the
issuance of a testimonial summons.
See United States v.
Bisceglia, supra at
420 U. S.
147-148;
United States v. Powell, supra at
379 U. S. 57.
Congress, through legislation, may expand or contract the duty
imposed, [
Footnote 5] but
absent some contrary expression, there is a wealth of history
helpful in defining the duties imposed by the issuance of a
summons.
The scope of the "testimonial" [
Footnote 6] or evidentiary duty imposed by common law or
statute has traditionally been interpreted as an expansive duty
limited principally by relevance and privilege. As this Court
described the contours of the duty in
United States v.
Bryan, 339 U. S. 323,
339 U. S. 331
(1950):
"[P]ersons summoned as witnesses by competent authority have
certain minimum duties and obligations which are necessary
concessions to the public interest in the orderly operation of
legislative and judicial machinery. . . . We have often iterated
the importance of this public duty, which every person within
Page 444 U. S. 713
the jurisdiction of the Government is bound to perform when
properly summoned."
While the Court recognized that certain exemptions would be
upheld, the "primary assumption" was that a summoned party must
"give what testimony one is capable of giving" absent an
exemption
"grounded in a substantial individual interest which has been
found, through centuries of experience, to outweigh the public
interest in the search for truth."
Ibid.
One application of this broad duty to provide relevant evidence
has been the recognition, since early times, of an obligation to
provide certain forms of nontestimonial physical evidence.
[
Footnote 7] In
Holt v.
United States, 218 U. S. 245,
218 U. S.
252-253 (1910) (Holmes, J.), the Court found that the
common law evidentiary duty permitted the compulsion of various
forms of physical evidence. In
Schmerber v. California,
384 U. S. 757,
384 U. S. 764
(1966), this Court observed that, traditionally, witnesses could be
compelled, in both state and federal courts, to submit to
"fingerprinting, photographing, or measurements, to write or
speak for identification, to appear in court, to stand, to assume a
stance, to walk, or to make a particular gesture."
See also United States v. Wade, 388 U.
S. 218 (1967). In
Gilbert v. California,
388 U. S. 263,
388 U. S.
266-267 (1967), handwriting was held, "like the . . .
body itself" to be an "identifying physical characteristic,"
subject to production. In
United States v. Dionisio,
410 U. S. 1 (1973),
and
United States v. Mara, 410 U. S.
19 (1973), this Court again confirmed that handwriting
is in the nature of physical evidence which can be compelled by a
grand jury in the exercise of its subpoena power.
See also
United States v. Mullaney, 32 F. 370 (CC Mo. 1887).
Page 444 U. S. 714
This broad duty to provide most relevant, nonprivileged evidence
has not been considered to exist only in the common law. The Court
has recognized that by statute "Congress may provide for the
performance of this duty."
Blackmer v. United States,
284 U. S. 421,
284 U. S. 438
(1932). By imposing an obligation to produce documents as well as
to appear and give testimony, we believe the language of § 7602
suggests an intention to codify a broad testimonial obligation,
including an obligation to provide some physical evidence relevant
and material to a tax investigation, subject to the traditional
privileges and limitations. This conclusion seems inherent in the
imposition of an obligation to "appear," since an obligation to
appear necessarily entails an obligation to display physical
features to the summoning authority. Congress thereby authorized
the Service to compel the production of some physical evidence, and
it is certainly possible to conclude that this authorization
extended to the execution of handwriting exemplars, one variety of
relevant physical evidence. This construction of the language
conforms with the historical notions of the testimonial duty
attaching to the issuance of a summons. [
Footnote 8]
B
Congress certainly could have narrowed the common law
testimonial duty in enacting § 7602, and thus we do not rely solely
on the common law meaning of the statutory language. Section 7602
does not, by its terms, compel the production of handwriting
exemplars, and therefore, a narrower interpretation of the duty
imposed is not precluded by the actual language of the statute. A
narrower interpretation is precluded, however, by the precedents of
this Court construing that statute. As early as 1911, this Court
established the benchmarks for interpreting the authority of the
Internal Revenue Service
Page 444 U. S. 715
to enforce tax obligations in holding that
"the administration of the statute may well be taken to embrace
all appropriate measures for its enforcement, [unless] there is . .
.substantial reason for assigning to the phrase[s] . . . a narrower
interpretation."
United States v. Chamberlain, 219 U.
S. 250,
219 U. S. 269.
This precise mode of construction has consistently been applied by
this Court in construing the breadth of the summons authority
Congress intended to confer in § 7602. In
United States v.
Powell, 379 U. S. 48
(1964), the Court declined to construe § 7605(b), prohibiting the
Secretary from conducting "unnecessary examination[s]," to require
probable cause for the issuance of a § 7602 summons. The Court
found that,
"[a]lthough a more stringent interpretation is possible, one
which would require some showing of cause for suspecting fraud, we
reject such an interpretation because it might seriously hamper the
Commissioner in carrying out investigations he thinks warranted. .
. ."
379 U.S. at
379 U. S. 53-54.
In
Donaldson v. United States, 400 U.
S. 517 (1971), the Court refused to hold that the
summons authority could not be used whenever there was a potential
that the civil investigation might later lead to criminal
prosecution. In construing the scope of the summons authority, the
Court emphasized that it refused to draw the line in a manner that
would "stultify enforcement of federal law."
Id. at
400 U. S. 536.
Finally, in
United States v. Bisceglia, 420 U.
S. 141 (1975), the Court upheld the Service's authority
to issue a John Doe summons to a bank in order to discover the
identity of an individual unknown to the Service. The Court
reasoned that, absent that construction, "no meaningful
investigation of such events could be conducted," and thus
"[s]ettled principles of statutory interpretation require that we
avoid such a result absent unambiguous directions from Congress."
Id. at
420 U. S. 150.
There is thus a formidable line of precedent construing
congressional intent to uphold the claimed enforcement authority of
the Service if authority is necessary for the effective enforcement
of the
Page 444 U. S. 716
revenue laws and is not undercut by contrary legislative
purposes. [
Footnote 9]
Applying these principles, we conclude that Congress empowered
the Service to seek, and obliged the witness to provide,
handwriting exemplars relevant to the investigation. First, there
is no question that handwriting exemplars will often be an
important evidentiary component in establishing tax liability. The
statutory framework, as reviewed in the numerous precedents recited
supra, imposes on the Secretary of the Treasury, and the
IRS as his designate, a broad duty to enforce the tax laws. 26
U.S.C. § 7601(a). Congress has legislated that the Secretary is
"required to make the inquiries, determinations, and assessments of
all taxes . . . imposed by this title. . . ." 26 U.S.C. § 6201(a).
Under § 6301, the Secretary "shall collect the taxes imposed by the
internal revenue laws." In order to fulfill these duties, the
Service will often need to determine whether a particular name is
an alias of a taxpayer. One effective method for resolving that
issue is through the use of handwriting exemplars. [
Footnote 10] As we recognized in
Bisceglia, the IRS does have a need for investigative
devices which assist them in ascertaining the identity of tax
Page 444 U. S. 717
evaders. In
Bisceglia, we held, in language relevant to
this case:
"[I]f criminal activity is afoot the persons involved may well
have used aliases or taken other measures to cover their tracks.
Thus, if the Internal Revenue Service is unable to issue a summons
to determine the identity of such persons, the broad inquiry
authorized by § 7601 will be frustrated in this class of cases.
Settled principles of statutory interpretation require that we
avoid such a result absent unambiguous directions from
Congress."
420 U.S. at
420 U. S.
150.
There is certainly nothing in the statutory language, [
Footnote 11] or in the legislative
history, [
Footnote 12]
precluding the interpretation
Page 444 U. S. 718
asserted by the Service. Nor is there any constitutional
privilege of the taxpayer or other parties that is violated by this
construction. Compulsion of handwriting exemplars is neither a
search or seizure subject to Fourth Amendment protections,
United States v. Mara, 410 U. S. 19
(1973), nor testimonial evidence protected by the Fifth Amendment
privilege against self-incrimination.
Gilbert v.
California, 388 U. S. 263
(1967). The compulsion of handwriting exemplars has been the
subject to far less protection than the compulsion of testimony and
documents. [
Footnote 13]
Since Congress has explicitly established an obligation to provide
the more protected forms of evidence, it would seem curious had it
chosen not to impose an obligation to produce a form of evidence
tradition has found it less important to protect. [
Footnote 14]
Page 444 U. S. 719
As we have emphasized in other cases dealing with § 7602
proceedings, the summoned party is entitled to challenge the
issuance of the summons in an adversary proceeding in federal court
prior to enforcement, and may assert appropriate defenses.
See
Bisceglia, 420 U.S. at
420 U. S. 151.
The Service must also establish compliance with the good faith
requirements recognized by this Court,
United States v. LaSalle
National Bank, 437 U.S. at
437 U. S. 318,
and with the requirement of § 7605(b) that "[n]o taxpayer shall be
subjected to unnecessary examination or investigation. . . ." These
protections are quite sufficient to lead us to refuse to strain to
imply additional ones from the neutral language Congress has used
in § 7602.
We accordingly reverse the judgment of the Court of Appeals
refusing enforcement of the summons.
Reversed.
[
Footnote 1]
The Fourth Circuit reached a contrary result in
United
States v. Rosinsky, 547 F.2d 249 (1977). The Sixth Circuit
decided this issue in accord with the Eighth Circuit.
United
States v. Brown, 536 F.2d 117 (1976).
[
Footnote 2]
The precise reasons for the court's holding are not clear. In
the opinion, the court suggests that the statute does not authorize
the IRS to compel a taxpayer to create evidence "out of thin air."
587 F.2d 25, 27, n. 3 (1978). The opinion also states, however,
that it adopts the views expressed in the dissenting opinion in
United Stutes v. Campbell, 524 F.2d 604, 608 (CA8 1975).
The principal reason forwarded in that decision for declining to
construe § 7602 to authorize production of handwriting exemplars
was the conclusion that such an order would constitute a seizure in
violation of the Fourth Amendment. As discussed
infra,
neither rationale supports the conclusion reached by the Court of
Appeals.
[
Footnote 3]
Responsibility for administration and enforcement of the revenue
laws is vested in the Secretary of the Treasury. 26 U.S.C. §
7801(a). The Internal Revenue Service, however, is organized to
carry out those responsibilities for the Secretary.
See
Donaldson v. United States, 400 U.S. at
400 U. S. 534;
35 Fed.Reg. 2417
et seq. (1970). For the purposes of this
opinion, we refer to the authority and responsibilities of the
Secretary and the Service interchangeably.
[
Footnote 4]
"Sec. 7602. Examination of Books and Witnesses."
"For the purpose of ascertaining the correctness of any return,
making a return where none has been made, determining the liability
of any person for any internal revenue tax or the liability at law
or in equity of any transferee or fiduciary of any person in
respect of any internal revenue tax, or collecting any such
liability, the Secretary or his delegate is authorized -- "
"(1) To examine any books, papers, records, or other data which
may be relevant or material to such inquiry;"
"(2) To summon the person liable for tax or required to perform
the act, or any officer or employee of such person, or any person
having possession, custody, or care of books of account containing
entries relating to the business of the person liable for tax or
required to perform the act, or any other person the Secretary or
his delegate may deem proper, to appear before the Secretary or his
delegate at a time and place named in the summons and to produce
such books, papers, records, or other data, and to give such
testimony, under oath, as may be relevant or material to such
inquiry; and"
"(3) To take such testimony of the person concerned, under oath,
as may be relevant or material to such inquiry."
[
Footnote 5]
Legislative efforts to
expand the scope of the
testimonial obligation would, of course, be limited by the
applicable constitutional guarantees.
[
Footnote 6]
The word "testimony" has been used loosely in this context to
refer to physical and documentary, as well as oral, evidence.
See 8 J. Wigmore, Evidence § 2194, p. 76 (McNaughton
Rev.1961).
[
Footnote 7]
Wigmore has identified the testimonial duty as including an
obligation
"to disclose for the purpose of justice all that is in his
control which can serve the ascertainment of the truth, [and] this
duty includes not only mental impressions preserved in his brain
and the documents preserved in his hands, but also the corporal
facts existing on his body."
Ibid.
[
Footnote 8]
As indicated elsewhere, we do not suggest that the evidentiary
obligation codified in § 7602 in all respects conforms to the
common law. We rely on the analogy only as one interpretive guide.
Supra at
444 U. S.
712.
[
Footnote 9]
Congressional intent to provide the Secretary with broad
latitude to adopt enforcement techniques helpful in the performance
of his tax collection and assessment responsibilities is expressed
throughout the Code. In § 6302, for example, Congress has conferred
the Secretary with discretion to devise methods of tax collection
not specifically provided by statute:
"Whether or not the method of collecting any tax imposed . . .
is specifically provided for by this title, any such tax may . . .
be collected by . . . other reasonable devices or methods as may be
necessary or helpful in securing a complete and proper collection
of the tax."
[
Footnote 10]
The United States suggests there are numerous uses of
handwriting exemplars helpful to the Service. Not only are they
useful in identifying the holder of a bank account, but they are
also said to be useful for identifying persons who file multiple
tax returns under false names claiming income tax refunds, purchase
of money orders under false names, and forgery of joint returns to
take advantage of lower joint rates.
[
Footnote 11]
Respondent argues that the language of § 7602 suggests that it
only requires the production of documents already in existence.
Since handwriting exemplars must be created by the witness, it is
argued that the statute is inapplicable. First, we do not view the
exhibition of physical characteristics to be equivalent to the
creation of documentary evidence.
See United States v.
Dionisio, 410 U. S. 1,
410 U. S. 6
(1973). Further, the statute obviously contemplates the
transformation of some evidence not formerly tangible, since it
obligates the summoned individual to provide testimony. The
testimony, of course, creates evidence not previously in existence.
We see no difference between the nature of the evidence created
when the witness is ordered to talk and that created when he is
ordered to write.
We express no opinion on the scope of the Service's authority to
otherwise order the witness to generate previously nonexistent
documentation under § 7602. The Service, in fact, has expressly
disclaimed any intention to order the creation of documents. The
Internal Revenue Manual § 4022.64(4) (CCH 1977) provides that an
administrative summons
"should not require the witness to do anything other than to
appear on a given date to give testimony and to bring with him/her
existing books, papers and records. A witness cannot be required to
prepare or create documents."
The section states, however, that "[t]he giving of exemplars,
for example, handwriting exemplars, at an appearance pursuant to a
summons is not
creating a document.'"
[
Footnote 12]
The legislative history is simply unilluminating. The only
conclusion which that history supports is that Congress did not
intend to change the expanse of the § 7602 summons authority by its
amendments in 1954. H.R.Rep. No. 1337, 83d Cong., 2d Sess. (1954);
S Rep. No. 1622, 83d Cong., 2d Sess. (1954). Since there are no
pre-1954 interpretations of the statute precluding the issuance of
handwriting exemplars, the legislative history sheds no light on
the construction intended by Congress.
[
Footnote 13]
Gilbert v. California, 388 U.
S. 263 (1967), demonstrates the minimal level of
protection afforded handwriting exemplars and the reasons why such
protection is unnecessary. The Court found that production of the
exemplars was not subject to the Fifth Amendment privilege, and
that their creation did not represent a critical stage requiring
counsel. The Court found only a "minimal risk that the absence of
counsel might derogate from [a] right to a fair trial."
Id. at
388 U. S. 267.
The Court concluded that
"if, for some reason, an unrepresentative exemplar is taken,
this can be brought out and corrected through the adversary process
at trial, since the accused can make an unlimited number of
additional exemplars for analysis and comparison by government and
defense handwriting experts."
Ibid.
[
Footnote 14]
Palmer v. United States, 530 F.2d 757 (CA8 1976),
similarly construed 28 U.S.C. § 1826(a). That statute authorizes
the imposition of contempt on witnesses who refuse to "testify or
provide other information." The statute does not explicitly
authorize contempt sanctions for refusal to execute handwriting
exemplars. The court found that the legislative history indicated
that Congress had intended, through the use of the language
employed in the statute, to "codify present civil contempt
practice." Since that practice had included the power to punish a
witness for refusing to create a handwriting exemplar, the court
reasoned that Congress must have thought this phrasing adequate to
cover production of handwriting samples.
MR JUSTICE BRENNAN, with whom MR JUSTICE MARSHALL and MR.
JUSTICE STEVENS join, dissenting.
The Internal Revenue Service, unlike common law courts, has only
such authority as Congress gives it.
Cf. United States v.
LaSalle National Bank, 437 U. S. 298,
437 U. S. 307
(1978) (validity of Service summonses depends on "whether they were
among those authorized by Congress"). Congress has granted the
Service authority to summon individuals
"to appear before the Secretary . . . at a time and place named
in the summons and to produce such books, papers, records, or other
data, and to give such testimony, under oath, as may be relevant or
material to such inquiry. . . ."
26 U.S.C. § 7602. The Court holds today that this authority to
compel "testimony" includes authority to compel the creation of
handwriting exemplars. [
Footnote
2/1]
Page 444 U. S. 720
The Court, however, is unable to point to anything in the
statutory language or legislative history that even suggests that
the obligation to "give testimony" includes an obligation to create
a handwriting exemplar. Indeed, the Court concedes, as it must,
that a handwriting exemplar is a kind of nontestimonial physical
evidence. [
Footnote 2/2] Certainly,
Congress has the power to authorize the Service to compel the
creation of exemplars, but it has not chosen to do so in § 7602.
[
Footnote 2/3] Accordingly, I
dissent.
MR. JUSTICE MARSHALL, dissenting.
In my view, the Fifth Amendment's privilege against compulsory
self-incrimination prohibits the Government from requiring a person
to provide handwriting exemplars. As I stated in my dissenting
opinion in
United States v. Mara, 410 U. S.
19,
410 U. S. 33
(1973),
"I cannot accept the notion that the Government can compel a man
to cooperate affirmatively in securing incriminating evidence when
that evidence could not be obtained without the cooperation of the
suspect."
The Fifth Amendment privilege is rooted in "the basic stream of
religious and political principle[,] . . . reflects the limits of
the individual's attornment to the state,"
In re
Gault, 387
Page 444 U. S. 721
U.S. 1,
387 U. S. 47
(1967), and embodies the "respect a government -- state or federal
-- must accord to the dignity and integrity of its citizens,"
Miranda v. Arizona, 384 U. S. 436,
384 U. S. 460
(1966). I continue to believe, then, that
"[i]t is only by prohibiting the Government from compelling an
individual to cooperate affirmatively in securing incriminating
evidence which could not be obtained without his active assistance
that 'the inviolability of the human personality' is assured."
United States v. Mara, supra at
410 U. S. 34-35
(dissenting opinion) (quoting
Miranda v. Arizona, supra,
at
384 U. S.
460).
In order to avoid this constitutional problem, I agree with my
Brother BRENNAN,
see ante, p.
444 U. S. 719,
that 26 U.S.C. § 7602 should be construed not to permit Internal
Revenue Service personnel to compel the production of handwriting
exemplars. Accordingly, I dissent.
[
Footnote 2/1]
The Court also places some reliance on the word "appear," which
the Court suggests "necessarily entails an obligation to display
physical features to the summoning authority."
Ante at
444 U. S. 714.
Plainly "appear" adds nothing to the authority of the Service. The
word is used only to indicate that the person summoned must deliver
the requested testimony or documents at the designated time and
place.
[
Footnote 2/2]
The Court's use of the label "nontestimonial" is meaningful, for
"[t]estimony properly means only such evidence as is delivered by a
witness . . . . either orally or in the form of affidavits or
depositions." Black's Law Dictionary 1324 (5th ed.1979). Testimony
is a statement of knowledge or belief by a witness, as opposed to
the mere display of a physical characteristic.
[
Footnote 2/3]
Even if I thought the statute were ambiguous, I would reach the
same result, because I strongly believe that,
"until Congress has stated otherwise, our duty to protect the
rights of the individual should hold sway over the interest in more
effective law enforcement."
Dalia v. United States, 441 U.
S. 238,
441 U. S. 263
(1979) (STEVENS, J., dissenting).