Pursuant to a subpoena, petitioner, the target of a federal
grand jury investigation, produced some records as to accounts at
foreign banks, but invoked his Fifth Amendment privilege against
self-incrimination when questioned about the existence or location
of additional bank records. After the foreign banks refused to
comply with subpoenas to produce any account records because their
governments' laws prohibit such disclosure without the customer's
consent, the Government filed a motion with the Federal District
Court for an order directing petitioner to sign a consent
directive, without identifying or acknowledging the existence of
any account, authorizing the banks to disclose records of any and
all accounts over which he had a right of withdrawal. The court
denied the motion, concluding that compelling petitioner to sign
the form was prohibited by the Fifth Amendment. The Court of
Appeals disagreed and reversed. On remand, the District Court
ordered petitioner to execute the consent directive, and, after he
refused, found him in civil contempt. The Court of Appeals
affirmed.
Held: Because the consent directive here is not
testimonial in nature, compelling petitioner to sign it does not
violate his Fifth Amendment privilege against self-incrimination.
Pp.
487 U. S.
206-218.
(a) In order to be "testimonial," an accused's oral or written
communication, or act, must itself, explicitly or implicitly,
relate a factual assertion or disclose information.
Cf. Fisher
v. United States, 425 U. S. 391;
United States v. Doe, 465 U. S. 605. It
is consistent with the history of and the policies underlying the
Self-Incrimination Clause to hold that the privilege may be
asserted only to resist compelled explicit or implicit disclosures
of incriminating information. Pp.
487 U. S.
207-214.
(b) Petitioner's execution of the consent directive here would
not have testimonial significance, because neither the form nor its
execution communicates any factual assertions, implicit or
explicit, or conveys any information to the Government. The form
does not acknowledge that an account in a foreign bank is in
existence, or that it is controlled by petitioner. Nor does the
form indicate whether documents or any other information relating
to petitioner are present at the foreign bank, assuming that such
an account does exist. Given the consent directive's phraseology,
petitioner's execution of the directive has no testimonial
Page 487 U. S. 202
significance either. If the Government obtains bank records
after petitioner signs the directive, the only factual statement
made by anyone will be the
bank's implicit declaration, by
its act of production in response to a subpoena, that
it
believes the accounts to be petitioner's. Pp.
487 U. S.
214-218.
812 F.2d 1404, affirmed.
BLACKMUN, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, O'CONNOR, SCALIA,
and KENNEDY, JJ., joined. STEVENS, J., filed a dissenting opinion,
post, 487 U. S.
219.
JUSTICE BLACKMUN delivered the opinion of the Court.
This case presents the question whether a court order compelling
a target of a grand jury investigation to authorize foreign banks
to disclose records of his accounts, without identifying those
documents or acknowledging their existence, violates the target's
Fifth Amendment privilege against self-incrimination.
I
Petitioner, named here as John Doe, is the target of a federal
grand jury investigation into possible federal offenses arising
from suspected fraudulent manipulation of oil cargoes and receipt
of unreported income. Doe appeared before the grand jury pursuant
to a subpoena that directed him to produce records of transactions
in accounts at three named banks in the Cayman Islands and Bermuda.
Doe produced some bank records and testified that no additional
records responsive
Page 487 U. S. 203
to the subpoena were in his possession or control. When
questioned about the existence or location of additional records,
Doe invoked the Fifth Amendment privilege against
self-incrimination.
The United States branches of the three foreign banks also were
served with subpoenas commanding them to produce records of
accounts over which Doe had signatory authority. Citing their
governments' bank secrecy laws, which prohibit the disclosure of
account records without the customer's consent, [
Footnote 1] the banks refused to comply.
See App. to Pet. for Cert. 17a, n. 2. The Government then
filed a motion with the United States District Court for the
Southern District of Texas that the court order Doe to sign 12
forms consenting to disclosure of any bank records respectively
relating to 12 foreign bank accounts over which the Government knew
or suspected that Doe had control. The forms indicated the account
numbers and described the documents that the Government wished the
banks to produce.
The District Court denied the motion, reasoning that, by signing
the consent forms, Doe would necessarily be admitting
Page 487 U. S. 204
the existence of the accounts. The District Court believed,
moreover, that, if the banks delivered records pursuant to the
consent forms, those forms would constitute "an admission that
[Doe] exercised signatory authority over such accounts."
Id. at 20a. The court speculated that the Government, in a
subsequent proceeding, then could argue that Doe must have guilty
knowledge of the contents of the accounts. Thus, in the court's
view, compelling Doe to sign the forms was compelling him "to
perform a testimonial act that would entail admission of knowledge
of the contents of potentially incriminating documents,"
id. at 20a, n. 6, and such compulsion was prohibited by
the Fifth Amendment. The District Court also noted that Doe had not
been indicted, and that his signing of the forms might provide the
Government with the incriminating link necessary to obtain an
indictment, the kind of "fishing expedition" that the Fifth
Amendment was designed to prevent.
Id. at 21a.
The Government sought reconsideration. Along with its motion, it
submitted to the court a revised proposed consent directive that
was substantially the same as that approved by the Eleventh Circuit
in
United States v. Ghidoni, 732 F.2d 814,
cert.
denied, 469 U.S. 932 (1984). The form purported to apply to
any and all accounts over which Doe had a right of withdrawal,
without acknowledging the existence of any such account. [
Footnote 2] The District Court denied
this motion also, reasoning
Page 487 U. S. 205
that compelling execution of the consent directive might lead to
the uncovering and linking of Doe to accounts that the grand jury
did not know were in existence. The court concluded that execution
of the proposed form would
"admit signatory authority over the speculative accounts, [and]
would implicitly authenticate any records of the speculative
accounts provided by the banks pursuant to the consent."
App. to Pet. for Cert. 13a, n. 7.
The Court of Appeals for the Fifth Circuit reversed in an
unpublished per curiam opinion, 775 F.2d 300 (1985). Relying on its
intervening decision in
In re United States Grand Jury
Proceedings (Cid), 767 F.2d 1131 (1985), the court held that
Doe could not assert his Fifth Amendment privilege as a basis for
refusing to sign the consent directive, because the form "did not
have testimonial significance," and therefore its compelled
execution would not violate Doe's Fifth Amendment rights. App. to
Pet. for Cert. 7a. [
Footnote
3]
On remand, the District Court ordered petitioner to execute the
consent directive. He refused. The District Court accordingly found
petitioner in civil contempt and ordered
Page 487 U. S. 206
that he be confined until he complied with the order.
Id. at 2a. The court stayed imposition of sanction pending
appeal and application for writ of certiorari.
Id. at
2a-3a.
The Fifth Circuit affirmed the contempt order, again in an
unpublished per curiam, concluding that its prior ruling
constituted the "law of the case," and was dispositive of Doe's
appeal.
Id. at 3a; judgt. order reported at 812 F.2d 1404
(1987). We granted certiorari, 484 U.S. 813 (1987), to resolve a
conflict among the Courts of Appeals as to whether the compelled
execution of a consent form directing the disclosure of foreign
bank records is inconsistent with the Fifth Amendment. [
Footnote 4] We conclude that a court
order compelling the execution of such a directive as is at issue
here does not implicate the Amendment.
II
It is undisputed that the contents of the foreign bank records
sought by the Government are not privileged under the Fifth
Amendment.
See Braswell v. United States, ante at
487 U. S.
108-110;
United States v. Doe, 465 U.
S. 605 (1984);
Fisher v. United States,
425 U. S. 391
(1976). There also is no question that the foreign banks cannot
invoke the Fifth Amendment in declining to produce the documents;
the privilege does not extend to such artificial entities.
See
Braswell v. United States, ante at
487 U. S.
102-103;
Bellis v. United States, 417 U. S.
85,
417 U. S. 89-90
(1974). Similarly, petitioner asserts no Fifth Amendment right to
prevent the banks from disclosing the account records, for the
Constitution "necessarily does not proscribe incriminating
statements elicited from another."
Page 487 U. S. 207
Couch v. United States, 409 U.
S. 322,
409 U. S. 328
(1973). Petitioner's sole claim is that his execution of the
consent forms directing the banks to release records as to which
the banks believe he has the right of withdrawal has independent
testimonial significance that will incriminate him, and that the
Fifth Amendment prohibits governmental compulsion of that act.
The Self-Incrimination Clause of the Fifth Amendment reads: "No
person . . . shall be compelled in any criminal case to be a
witness against himself." This Court has explained that "the
privilege protects a person only against being incriminated by his
own compelled testimonial communications."
Fisher v. United
States, 425 U.S. at
425 U. S. 409,
citing
Schmerber v. California, 384 U.
S. 757 (1966);
United States v. Wade,
388 U. S. 218
(1967); and
Gilbert v. California, 388 U.
S. 263 (1967). The execution of the consent directive at
issue in this case obviously would be compelled, and we may assume
that its execution would have an incriminating effect. [
Footnote 5] The question on which this
case turns is whether the act of executing the form is a
"testimonial communication." The parties disagree about both the
meaning of "testimonial" and whether the consent directive fits the
proposed definitions.
A
Petitioner contends that a compelled statement is testimonial if
the Government could use the content of the speech or writing, as
opposed to its physical characteristics, to further a criminal
investigation of the witness. The second half of petitioner's
"testimonial" test is that the statement must be incriminating,
which is, of course, already a separate requirement
Page 487 U. S. 208
for invoking the privilege. Thus, Doe contends, in essence, that
every written and oral statement significant for its content is
necessarily testimonial for purposes of the Fifth Amendment.
[
Footnote 6] Under this view,
the consent directive is testimonial, because it is a declarative
statement of consent made by Doe to the foreign banks, a statement
that the Government will use to persuade the banks to produce
potentially incriminating account records that would otherwise be
unavailable to the grand jury.
The Government, on the other hand, suggests that a compelled
statement is not testimonial for purposes of the privilege unless
it implicitly or explicitly relates a factual assertion or
otherwise conveys information to the Government. It argues that,
under this view, the consent directive is not
Page 487 U. S. 209
testimonial, because neither the directive itself nor Doe's
execution of the form discloses or communicates facts or
information. Petitioner disagrees.
The Government's view of the privilege, apparently accepted by
the Courts of Appeals that have considered compelled consent forms,
[
Footnote 7] is derived largely
from this Court's decisions in
Fisher and
Doe.
The issue presented in those cases was whether the act of producing
subpoenaed documents, not itself the making of a statement, might
nonetheless have some protected testimonial aspects. The Court
concluded that the act of production could constitute protected
testimonial communication, because it might entail implicit
statements of fact: by producing documents in compliance with a
subpoena, the witness would admit that the papers existed, were in
his possession or control, and were authentic.
United States v.
Doe, 465 U.S. at
465 U. S. 613,
and n. 11;
Fisher, 425 U.S. at
425 U. S.
409-410;
id. at
425 U. S. 428,
425 U. S. 432
(concurring opinions).
See Braswell v. United States, ante
at
487 U. S. 104;
id. at
487 U. S. 122
(dissenting opinion). Thus, the Court made clear that the Fifth
Amendment privilege against self-incrimination applies to acts that
imply assertions of fact.
We reject petitioner's argument that this test does not control
the determination as to when the privilege applies to oral or
written statements. While the Court in
Fisher and
Doe did not purport to announce a universal test for
determining the scope of the privilege, it also did not purport to
establish a more narrow boundary applicable to acts alone. To the
contrary, the Court applied basic Fifth Amendment principles.
[
Footnote 8] An examination of
the Court's application of these
Page 487 U. S. 210
principles in other cases indicates the Court's recognition
that, in order to be testimonial, an accused's communication must
itself, explicitly or implicitly, relate a factual assertion or
disclose information. [
Footnote
9] Only then is a person compelled to be a "witness" against
himself.
This understanding is perhaps most clearly revealed in those
cases in which the Court has held that certain acts, though
incriminating, are not within the privilege. Thus, a suspect may be
compelled to furnish a blood sample,
Schmerber v.
California, 384 U.S. at
384 U. S. 765;
to provide a handwriting exemplar,
Gilbert v. California,
388 U.S. at
388 U. S.
266-267, or a voice exemplar,
United States v.
Dionisio, 410 U. S. 1,
410 U. S. 7
(1973); to stand in a lineup,
United States v. Wade, 388
U.S. at
388 U. S.
221-222; and to wear particular clothing,
Holt v.
United States, 218 U. S. 245,
218 U. S.
252-253 (1910). These decisions are grounded on the
proposition that
"the privilege protects an accused only from being compelled to
testify against himself, or otherwise provide the State with
evidence of a testimonial or communicative nature."
Schmerber, 384 U.S. at
384 U. S. 761.
The Court accordingly held that the privilege
Page 487 U. S. 211
was not implicated in each of those cases, because the suspect
was not required "to disclose any knowledge he might have," or "to
speak his guilt,"
Wade, 388 U.S. at
388 U. S.
222-223.
See Dionisio, 410 U.S. at
410 U. S. 7;
Gilbert, 388 U.S. at
388 U. S.
266-267. It is the "extortion of information from the
accused,"
Couch v. United States, 409 U.S. at
409 U. S. 328,
the attempt to force him "to disclose the contents of his own
mind,"
Curcio v. United States, 354 U.
S. 118,
354 U. S. 128
(1957), that implicates the Self-Incrimination Clause.
See also
Kastigar v. United States, 406 U. S. 441,
406 U. S. 445
(1972) (the privilege "protects against any
disclosures
that the witness reasonably believes could be used in a criminal
prosecution or could lead to other evidence that might be so used")
(emphasis added).
"Unless some attempt is made to secure a communication --
written, oral or otherwise -- upon which reliance is to be placed
as involving [the accused's] consciousness of the facts and the
operations of his mind in expressing it, the demand made upon him
is not a testimonial one."
8 Wigmore § 2265, p. 386. [
Footnote 10]
Page 487 U. S. 212
It is consistent with the history of and the policies underlying
the Self-Incrimination Clause to hold that the privilege 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.
Such was the process of the ecclesiastical courts and the Star
Chamber -- the inquisitorial method of putting the accused upon his
oath and compelling him to answer questions designed to uncover
uncharged offenses, without evidence from another source.
See
Andresen v. Maryland, 427 U. S. 463,
427 U. S.
470-471 (1976); 8 Wigmore § 2250; E. Griswold, The Fifth
Amendment Today 2-3 (1955). The major thrust of the policies
undergirding the privilege is to prevent such compulsion. The
Self-Incrimination Clause reflects
"'a judgment . . . that the prosecution should [not] be free to
build up a criminal case, in whole or in part, with the assistance
of enforced
disclosures by the accused.'"
(Emphasis added.)
Ullmann v. United States,
350 U. S. 422,
350 U. S. 427
(1956), quoting
Maffie v. United States, 209 F.2d 225, 227
(CA1 1954). The Court in
Murphy v. Waterfront Comm'n of New
York Harbor, 378 U. S. 52
(1964), explained that the privilege is founded on
"our unwillingness to subject those suspected of crime to the
cruel trilemma of self-accusation, perjury, or contempt; our
preference for an accusatorial, rather than an inquisitorial,
system of criminal justice; our fear that self-incriminating
statements will be elicited by inhumane treatment and abuses; our
sense of fair play which dictates"
"a fair state-individual balance by requiring the government to
leave the individual alone until good cause is shown for disturbing
him, and by requiring the government, in its contest with the
individual, to shoulder the entire load,"
". . . ; our respect for the inviolability of the human
personality and of the right of each individual 'to a private
enclave where he may lead a private life,'
Page 487 U. S. 213
. . . ; our distrust of self-deprecatory statements; and our
realization that the privilege, while sometimes 'a shelter to the
guilty,' is often 'a protection to the innocent.'"
Id. at
378 U. S. 55
(citations omitted). These policies are served when the privilege
is asserted to spare the accused from having to reveal, directly or
indirectly, his knowledge of facts relating him to the offense or
from having to share his thoughts and beliefs with the Government.
[
Footnote 11]
We are not persuaded by petitioner's arguments that our
articulation of the privilege fundamentally alters the power of the
Government to compel an accused to assist in his prosecution. There
are very few instances in which a verbal statement, either oral or
written, will not convey information or assert facts. The vast
majority of verbal statements thus will be testimonial and, to that
extent at least, will fall within
Page 487 U. S. 214
the privilege. [
Footnote
12] Furthermore, it should be remembered that there are many
restrictions on the Government's prosecutorial practices in
addition to the Self-Incrimination Clause. Indeed, there are other
protections against governmental efforts to compel an unwilling
suspect to cooperate in an investigation, including efforts to
obtain information from him. [
Footnote 13] We are confident that these provisions,
together with the Self-Incrimination Clause, will continue to
prevent abusive investigative techniques.
B
The difficult question whether a compelled communication is
testimonial for purposes of applying the Fifth Amendment often
depends on the facts and circumstances of the particular
Page 487 U. S. 215
case.
Fisher, 425 U.S. at
425 U. S. 410.
This case is no exception. We turn, then, to consider whether Doe's
execution of the consent directive at issue here would have
testimonial significance. We agree with the Court of Appeals that
it would not, because neither the form nor its execution
communicates any factual assertions, implicit or explicit, or
conveys any information to the Government.
The consent directive itself is not "testimonial." It is
carefully drafted not to make reference to a specific account, but
only to speak in the hypothetical. Thus, the form does not
acknowledge that an account in a foreign financial institution is
in existence, or that it is controlled by petitioner. Nor does the
form indicate whether documents or any other information relating
to petitioner are present at the foreign bank, assuming that such
an account does exist.
Cf. United States v. Ghidoni, 732
F.2d at 818;
In re Grand Jury Proceedings (Ranauro), 814
F.2d 791, 793 (CA1 1987);
In re Grand Jury Subpoena, 826
F.2d 1166, 1170 (CA2 1987),
cert. denied sub nom. Coe v. United
States, post p. ___;
In re Grand Jury Proceedings
(Cid), 767 F.2d at 1132. The form does not even identify the
relevant bank. Although the executed form allows the Government
access to a potential source of evidence, the directive itself does
not point the Government toward hidden accounts or otherwise
provide information that will assist the prosecution in uncovering
evidence. The Government must locate that evidence "
by the
independent labor of its officers,'" Estelle v. Smith,
451 U. S. 454,
451 U. S. 462
(1981), quoting Culombe v. Connecticut, 367 U.
S. 568, 367 U. S. 582
(1961) (opinion announcing the judgment). As in Fisher,
the Government is not relying upon the "`truth-telling'" of Doe's
directive to show the existence of, or his control over, foreign
bank account records. See 425 U.S. at 425 U. S. 411,
quoting 8 Wigmore § 2264, p. 380.
Given the consent directive's phraseology, petitioner's
compelled act of executing the form has no testimonial significance
either. By signing the form, Doe makes no statement,
Page 487 U. S. 216
explicit or implicit, regarding the existence of a foreign bank
account or his control over any such account. Nor would his
execution of the form admit the authenticity of any records
produced by the bank.
Cf. United States v. Ghidoni, 732
F.2d at 818-819;
In re Grand Jury Subpoena, 826 F.2d at
1170. Not only does the directive express no view on the issue, but
because petitioner did not prepare the document, any statement by
Doe to the effect that it is authentic would not establish that the
records are genuine.
Cf. Fisher, 425 U.S. at
425 U. S. 413.
Authentication evidence would have to be provided by bank
officials.
Finally, we cannot agree with petitioner's contention that his
execution of the directive admits or asserts Doe's consent. The
form does not state that Doe "consents" to the release of bank
records. Instead, it states that the directive "shall be construed
as consent" with respect to Cayman Islands and Bermuda bank secrecy
laws. Because the directive explicitly indicates that it was signed
pursuant to a court order, Doe's compelled execution of the form
sheds no light on his actual intent or state of mind. [
Footnote 14] The form does "direct"
the
Page 487 U. S. 217
bank to disclose account information and release any records
that "may" exist and for which Doe "may" be a relevant principal.
But directing the recipient of a communication to do something is
not an assertion of fact or, at least in this context, a disclosure
of information. In its testimonial significance, the execution of
such a directive is analogous to the production of a handwriting
sample or voice exemplar: it is a nontestimonial act. In neither
case is the suspect's action compelled to obtain "any knowledge he
might have."
Wade, 388 U.S. at
388 U. S. 222.
[
Footnote 15]
We read the directive as equivalent to a statement by Doe that,
although he expresses no opinion about the existence
Page 487 U. S. 218
of, or his control over, any such account, he is authorizing the
bank to disclose information relating to accounts over which, in
the bank's opinion, Doe can exercise the right of withdrawal.
Cf. Ghidoni, 732 F.2d at 818, n. 8 (similarly interpreting
a nearly identical consent directive). When forwarded to the bank
along with a subpoena, the executed directive, if effective under
local law, [
Footnote 16]
will simply make it possible for the recipient bank to comply with
the Government's request to produce such records. As a result, if
the Government obtains bank records after Doe signs the directive,
the only factual statement made by anyone will be the bank's
implicit declaration, by its act of production in response to the
subpoena, that it believes the accounts to be petitioner's.
Cf.
Fisher, 425 U.S. at
425 U. S. 410,
425 U. S.
412-413. The fact that the bank's customer has directed
the disclosure of his records "would say nothing about the
correctness of the bank's representations." Brief for United States
21-22. Indeed, the Second and Eleventh Circuits have concluded that
consent directives virtually identical to the one here are
inadmissible as an admission by the signator of either control or
existence.
In re Grand Jury Subpoena, 826 F.2d at 1171;
Ghidoni, 732 F.2d at 818, and n. 9.
Page 487 U. S. 219
III
Because the consent directive is not testimonial in nature, we
conclude that the District Court's order compelling petitioner to
sign the directive does not violate his Fifth Amendment privilege
against self-incrimination. Accordingly, the judgment of the Court
of Appeals is affirmed.
It is so ordered.
[
Footnote 1]
It is a criminal offense for a Cayman bank to divulge any
confidential information with respect to a customer's account
unless the customer has consented to the disclosure.
See
the 1976 Confidential Relationships (Preservation) Law No. 16, as
amended, 1979 CAY.IS.LAWS, ch. 26, §§ 3, 4. (Cayman Islands bank
secrecy law).
Apparently, Bermuda common law has been interpreted as imposing
an implied contract of confidentiality between a Bermuda bank and
its customers, pursuant to which
"no Bermuda bank may release information in its possession
concerning its customers' affairs unless (1) it is ordered to do so
by a court of competent jurisdiction in Bermuda, or (2) it receives
a specific written direction from its customer requesting the bank
to release such information."
Letter dated August 1, 1984, from Richard A. Bradspies, Vice
President-Operations, of the Bank of Bermuda International Ltd., to
David Geneson, Esq., Fraud Section, Criminal Division, U.S. Dept.
of Justice, Respondent's Exhibit 4; Respondent's Notice of
Disclosure of 6(e) Materials, 2 Record 307.
The Government has not yet sought contempt sanctions against the
banks.
[
Footnote 2]
The revised consent form reads:
"I, _____, of the State of Texas in the United States of
America, do hereby direct any bank or trust company at which I may
have a bank account of any kind or at which a corporation has a
bank account of any kind upon which I am authorized to draw, and
its officers, employees and agents, to disclose all information and
deliver copies of all documents of every nature in your possession
or control which relate to said bank account to Grand Jury 84-2,
empaneled May 7, 1984 and sitting in the Southern District of
Texas, or to any attorney of the District of Texas, or to any
attorney of the United States Department of Justice assisting said
Grand Jury, and to give evidence relevant thereto, in the
investigation conducted by Grand Jury 84-2 in the Southern District
of Texas, and this shall be irrevocable authority for so doing.
This direction has been executed pursuant to that certain order of
the United States District Court for the Southern District of Texas
issued in connection with the aforesaid investigation, dated _____.
This direction is intended to apply to the Confidential
Relationships (Preservation) Law of the Cayman Islands, and to any
implied contract of confidentiality between Bermuda banks and their
customers which may be imposed by Bermuda common law, and shall be
construed as consent with respect thereto as the same shall apply
to any of the bank accounts for which I may be a relevant
principal."
App. to Pet. for Cert. 12a, n. 5.
[
Footnote 3]
The Court of Appeals, citing
United States v. New York
Telephone Co., 434 U. S. 159,
434 U. S. 174
(1977), held that the All Writs Act, 28 U.S.C. § 1651(a),
authorized the District Court to consider the Government's motion
to compel Doe's execution of the consent form, since that
compulsion would facilitate the enforcement of the grand jury
subpoenas served on the banks. App. to Pet. for Cert. 6a-7a.
Petitioner has not challenged the Court of Appeals' conclusion
regarding the District Court's authority for entering its order,
and we do not address that issue here.
[
Footnote 4]
The Second and Eleventh Circuits, as did the Fifth, have held
that the Fifth Amendment is not implicated by a court order
compelling consent to the disclosure of foreign bank records.
United States v. Ghidoni, 732 F.2d 814 (CA11),
cert.
denied, 469 U.S. 932 (1984);
United States v. Davis,
767 F.2d 1025, 1039-1040 (CA2 1985);
accord, In re Grand Jury
Subpoena, 826 F.2d 1166 (CA2 1987),
cert. denied sub nom.
Coe v. United States, post p. ___. A divided panel of the
First Circuit, however, has held that such an order violates the
Fifth Amendment.
In re Grand Jury Proceedings (Ranauro),
814 F.2d 791 (1987).
[
Footnote 5]
As noted above, the District Court concluded that the consent
directive was incriminating in that it would furnish the Government
with a link in the chain of evidence leading to Doe's indictment.
Because we ultimately find no testimonial significance in either
the contents of the directive or Doe's execution of it, we need
not, and do not, address the incrimination element of the
privilege.
[
Footnote 6]
Petitioner's blanket assertion that a statement is testimonial
for Fifth Amendment purposes if its content can be used to obtain
evidence confuses the requirement that the compelled communication
be "testimonial" with the separate requirement that the
communication be "incriminating." If a compelled statement is "not
testimonial and for that reason not protected by the privilege, it
cannot become so because it will lead to incriminating evidence."
In re Grand Jury Subpoena, 826 F.2d at 1172, n. 2
(concurring opinion).
Petitioner's heavy reliance on this Court's decision in
Kastigar v. United States, 406 U.
S. 441 (1972), for a contrary proposition is misguided.
Kastigar affirmed the constitutionality of 18 U.S.C. §§
6002 and 6003, which permit the Government to compel testimony as
long as the witness is immunized against the use in any criminal
case of the "testimony or other information" provided. In holding
that the immunity provided by the statute is coextensive with the
Fifth Amendment privilege, the Court implicitly concluded that the
privilege prohibits "the use of compelled testimony, as well as
evidence derived directly and indirectly therefrom." 406 U.S. at
406 U. S. 453.
The prohibition of derivative use is an implementation of the "link
in the chain of evidence" theory for invocation of the privilege,
pursuant to which the "compelled testimony" need not itself be
incriminating if it would lead to the discovery of incriminating
evidence.
See Hoffman v. United States, 341 U.
S. 479,
341 U. S. 486
(1951).
See also Murphy v. Waterfront Comm'n of New York
Harbor, 378 U. S. 52,
378 U. S. 79
(1964); 8 J. Wigmore, Evidence § 2260 (McNaughton rev.1961)
(Wigmore). This prohibition, however, assumes that the suspect's
initial compelled communication is testimonial.
[
Footnote 7]
See In re Grand Jury Proceedings (Cid), 767 F.2d 1131,
1132 (CA5 1985);
In re Grand Jury Proceedings (Ranauro),
814 F.2d at 793;
id. at 798 (dissenting opinion);
United States v. Davis, 767 F.2d at 1040.
See also
United States v. Ghidoni, 732 F.2d at 816.
[
Footnote 8]
The decisions in
Fisher v. United States, 425 U.
S. 391 (1976), and
United States v. Doe,
465 U. S. 605
(1984), rested on the understanding that
"'the Court has never on any ground . . . applied the Fifth
Amendment to prevent the otherwise proper acquisition or use of
evidence which, in the Court's view, did not involve compelled
testimonial self-incrimination of some sort.'"
Id. at
465 U. S. 611,
n. 8, quoting
Fisher, 425 U.S. at
425 U. S. 399.
The Court thus squarely held that the Fifth Amendment comes into
play "only when the accused is compelled to make a
testimonial communication that is incriminating."
Id. at
425 U. S. 408
(emphasis in original);
see id. at
425 U. S. 409;
Doe, supra, at
465 U. S. 611,
465 U. S. 613.
These principles were articulated in general terms, not as confined
to acts. Petitioner has articulated no cogent argument as to why
the "testimonial" requirement should have one meaning in the
context of acts and another meaning in the context of verbal
statements.
[
Footnote 9]
We do not disagree with the dissent that "[t]he expression of
the contents of an individual's mind" is testimonial communication
for purposes of the Fifth Amendment.
Post at
487 U. S. 220,
n. 1. We simply disagree with the dissent's conclusion that the
execution of the consent directive at issue here forced petitioner
to express the contents of his mind. In our view, such compulsion
is more like "be[ing] forced to surrender a key to a strongbox
containing incriminating documents," than it is like "be[ing]
compelled to reveal the combination to [petitioner's] wall safe."
Post at
487 U. S.
219.
[
Footnote 10]
Petitioner's reliance on a statement in this Court's decision in
Schmerber v. California, 384 U. S. 757
(1966), for the proposition that all verbal statements sought for
their content are testimonial is misplaced. In
Schmerber,
the Court stated that the privilege extends to "an accused's
communications, whatever form they might take,"
id. at
384 U. S.
763-764, but it did so in the context of clarifying that
the privilege may apply not only to verbal communications, as was
once thought, but also to physical communications.
See United
States v. Wade, 388 U. S. 218,
388 U. S. 223
(1967). Contrary to petitioner's urging, the
Schmerber
line of cases does not draw a distinction between unprotected
evidence sought for its physical characteristics and protected
evidence sought for its content. Rather, the Court distinguished
between the suspect's being compelled himself to serve as evidence
and the suspect's being compelled to disclose or communicate
information or facts that might serve as or lead to incriminating
evidence.
See, e.g., Schmerber, 384 U.S. at
384 U. S. 764.
See also Holt v. United States, 218 U.
S. 245,
218 U. S.
252-253 (1910); 8 Wigmore § 2265, p. 386. In order to be
privileged, it is not enough that the compelled communication is
sought for its content. The content itself must have testimonial
significance.
Fisher, 425 U.S. at
425 U. S. 408;
Gilbert v. California, 388 U. S. 263,
388 U. S. 267
(1967);
Wade, 388 U.S. at
388 U. S.
222.
[
Footnote 11]
Petitioner argues that at least some of these policies would be
undermined unless the Government is required to obtain evidence
against an accused from sources other than his compelled
statements, whether or not the statements make a factual assertion
or convey information. Petitioner accordingly maintains that the
policy of striking an appropriate balance between the power of the
Government and the sovereignty of the individual precludes the
Government from compelling an individual to utter or write words
that lead to incriminating evidence. Even if some of the policies
underlying the privilege might support petitioner's interpretation
of the privilege,
"it is clear that the scope of the privilege does not coincide
with the complex of values it helps to protect. Despite the impact
upon the inviolability of the human personality, and upon our
belief in an adversary system of criminal justice in which the
Government must produce the evidence against an accused through its
own independent labors, the prosecution is allowed to obtain and
use . . . evidence which, although compelled, is, generally
speaking, not 'testimonial,'
Schmerber v. California,
384 U. S.
757,
384 U. S. 761."
Grosso v. United States, 390 U. S.
62,
390 U. S. 72-73
(1968) (BRENNAN, J., concurring).
See also Schmerber, 384
U.S. at
384 U. S.
762-763. If the societal interests in privacy, fairness,
and restraint of governmental power are not unconstitutionally
offended by compelling the accused to have his body serve as
evidence that leads to the development of highly incriminating
testimony, as
Schmerber and its progeny make clear, it is
difficult to understand how compelling a suspect to make a
nonfactual statement that facilitates the production of evidence by
someone else offends the privilege.
[
Footnote 12]
In particular, we do not agree that our articulation cuts back
on the Court's explanation in
Miranda v. Arizona,
384 U. S. 436
(1966), that
"the privilege is fulfilled only when the person is guaranteed
the right 'to remain silent unless he chooses to speak in the
unfettered exercise of his own will.'"
Id. at
384 U. S. 460,
quoting
Malloy v. Hogan, 378 U. S. 1,
378 U. S. 8
(1964). In
Miranda, the Court addressed a suspect's Fifth
Amendment privilege in the face of custodial interrogation by the
Government. Our test for when a communication is "testimonial" does
not authorize law enforcement officials to make an unwilling
suspect speak in this context. It is clear that the accused in a
criminal case is exempt from giving answers altogether, for (at
least on the prosecution's assumption) they will disclose
incriminating information that the suspect harbors.
To the extent petitioner attempts to construe
Miranda
as establishing an absolute right against being compelled to speak,
that understanding is refuted by the Court's decision in
United
States v. Dionisio, 410 U. S. 1 (1973),
in which the Court held that a suspect may not invoke the privilege
in refusing to speak for purposes of providing a voice
exemplar.
[
Footnote 13]
For example, the Fourth Amendment generally prevents the
government from compelling a suspect to consent to a search of his
home,
cf. Schneckloth v. Bustamonte, 412 U.
S. 218,
412 U. S.
248-249 (1973); the attorney-client privilege prevents
the Government from compelling a suspect to direct his attorney to
disclose confidential communications,
see generally Upjohn Co.
v. United States, 449 U. S. 383,
449 U. S. 389
(1981); 8 Wigmore § 2292; and the Due Process Clause imposes
limitations on the government's ability to coerce individuals into
participating in criminal prosecutions,
see generally Rochin v.
California, 342 U. S. 165,
342 U. S. 174
(1952).
[
Footnote 14]
The consent directive at issue here differs from the form at
issue in
Ranauro, which suggested that the witness, in
fact, had consented:
"I, [witness], consent to the production to the [District Court
and Grand Jury] of any and all records related to any accounts held
by, or banking transactions engaged in with, [bank X], which are in
the name of, or on behalf of: [witness], if any such records
exist."
814 F.2d at 796. Further, the
Ranauro form, unlike the
directive here, did not indicate that it was executed under court
order.
Id. at 795. It is true that the First Circuit made
clear that its conclusion that the
Ranauro form was
testimonial did not turn on these distinctions,
ibid., but
we are not sanguine that the differences are irrelevant. Even if
the Self-Incrimination Clause was not implicated, it might be
argued that the compelled signing of such a "consent" form raises
due process concerns.
Cf. In re Grand Jury Subpoena, 826
F.2d at 1171 (finding no due process violation where directive
clearly states that witness is signing under compulsion of court
order);
United States v. Ghidoni, 732 F.2d at 818, n. 7
(same). Neither issue, of course, is presented by this case, and we
take no position on whether such compulsion in fact would violate
Fifth Amendment or due process principles.
[
Footnote 15]
Petitioner apparently maintains that the performance of every
compelled act carries with it an implied assertion that the act has
been performed by the person who was compelled, and therefore the
performance of the act is subject to the privilege. In
Wade,
Gilbert, and
Dionisio, the Court implicitly rejected
this argument. It could be said in those cases that the suspect, by
providing his handwriting or voice exemplar, implicitly
"acknowledged" that the writing or voice sample was his. But as the
holdings make clear, this kind of simple acknowledgment -- that the
suspect in fact performed the compelled act -- is not "sufficiently
testimonial for purposes of the privilege."
Fisher, 425
U.S. at
425 U. S. 411.
Similarly, the acknowledgment that Doe directed the bank to
disclose any records the bank thinks are Doe's -- an acknowledgment
implicit in Doe's placing his signature on the consent directive --
is not sufficiently testimonial for purposes of the privilege.
The dissent apparently disagrees with us on this point, although
the basis for its disagreement is unclear.
See post at
487 U. S.
221-222, n. 2. Surely, the fact that the executed form
creates "a new piece of evidence that may be used against
petitioner" is not relevant to whether the execution has
testimonial significance, for the same could be said about the
voice and writing exemplars the Court found were not testimonial in
nature. Similarly irrelevant to the issue presented here is the
dissent's invocation of the First Circuit's hypothetical of how the
Government might use the directive to link petitioner to whatever
documents the banks produce. That hypothetical, as the First
Circuit indicated,
Ranauro, 814 F.2d at 793, goes only to
showing that the directive may be
incriminating, an issue
not presented in this case.
See supra, n 5, at
487 U. S. 207.
It has no bearing on whether the compelled execution of the
directive is
testimonial.
[
Footnote 16]
The Government of the Cayman Islands maintains that a compelled
consent, such as the one at issue in this case, is not sufficient
to authorize the release of confidential financial records
protected by Cayman law. Brief for Government of Cayman Islands as
Amicus Curiae 9-11. The Grand Court of the Cayman Islands
has held expressly that a consent directive signed pursuant to an
order of a United States court and at the risk of contempt
sanctions could not constitute "consent" under the Cayman
confidentiality law.
See In re ABC Ltd., 1984 C.I.L.R. 130
(1984) (reviewing the consent directive at issue in Ghidoni).
Respondent observes that the cited decision has not been appealed,
and argues, accordingly, that Cayman law on the point has not been
definitely settled.
The effectiveness of the directive under foreign law has no
bearing on the constitutional issue in this case. Nevertheless, we
are not unaware of the international comity questions implicated by
the Government's attempts to overcome protections afforded by the
laws of another nation. We are not called upon to address those
questions here.
JUSTICE STEVENS, dissenting.
A defendant can be compelled to produce material evidence that
is incriminating. Fingerprints, blood samples, voice exemplars,
handwriting specimens, or other items of physical evidence may be
extracted from a defendant against his will. But can he be
compelled to use his mind to assist the prosecution in convicting
him of a crime? I think not. He may in some cases be forced to
surrender a key to a strongbox containing incriminating documents,
but I do not believe he can be compelled to reveal the combination
to his wall safe -- by word or deed.
The document the Government seeks to extract from John Doe
purports to order third parties to take action that will lead to
the discovery of incriminating evidence. The directive itself may
not betray any knowledge petitioner may have about the
circumstances of the offenses being investigated by the grand jury,
but it nevertheless purports to evidence a reasoned decision by Doe
to authorize action by others. The forced execution of this
document differs from the forced production of physical evidence,
just as human beings differ from other animals. [
Footnote 2/1]
Page 487 U. S. 220
If John Doe can be compelled to use his mind to assist the
Government in developing its case, I think he will be forced "to be
a witness against himself." The fundamental purpose of the Fifth
Amendment was to mark the line between the kind of inquisition
conducted by the Star Chamber and what we proudly describe as our
accusatorial system of justice. It
Page 487 U. S. 221
reflects "our respect for the inviolability of the human
personality,"
Murphy v. Waterfront Comm'n of New York
Harbor, 378 U. S. 52,
378 U. S. 55
(1964). "[I]t is an explicit right of a natural person, protecting
the realm of human thought and expression."
Braswell v. United
States, ante at
487 U. S. 119
(KENNEDY, J., dissenting). In my opinion that protection gives John
Doe the right to refuse to sign the directive authorizing access to
the records of any bank account that he may control. [
Footnote 2/2] Accordingly, I respectfully
dissent.
[
Footnote 2/1]
The forced production of physical evidence, which we have
condoned,
see Gilbert v. California, 388 U.
S. 263 (1967) (handwriting exemplar);
United States
v. Wade, 388 U. S. 218
(1967) (voice exemplar);
Schmerber v. California,
384 U. S. 757
(1966) (blood test);
Holt v. United States, 218 U.
S. 245 (1910) (lineup), involves no intrusion upon the
contents of the mind of the accused.
See Schmerber, 384
U.S. at
384 U. S. 765
(forced blood test permissible because it does not involve "even a
shadow of testimonial compulsion upon or enforced communication by
the accused"). The forced execution of a document that purports to
convey the signer's authority, however, does invade the dignity of
the human mind; it purports to communicate a deliberate command.
The intrusion on the dignity of the individual is not diminished by
the fact that the document does not reflect the true state of the
signer's mind. Indeed, that the assertions petitioner is forced to
utter by executing the document are false causes an even greater
violation of human dignity. For the same reason a person cannot be
forced to sign a document purporting to authorize the entry of
judgment against himself,
cf. Brady v. United States,
397 U. S. 742,
397 U. S. 748
(1970), I do not believe he can be forced to sign a document
purporting to authorize the disclosure of incriminating evidence.
In both cases, the accused is being compelled "to be a witness
against himself"; indeed, here he is being compelled to bear false
witness against himself.
The expression of the contents of an individual's mind falls
squarely within the protection of the Fifth Amendment.
Boyd v.
United States, 116 U. S. 616,
116 U. S.
633-635 (1886);
Fisher v. United States,
425 U. S. 391,
425 U. S. 420
(1976). Justice Holmes' observation that
"the prohibition of compelling a man in a criminal court to be
witness against himself is a prohibition of the use of physical or
moral compulsion to extort communications from him,"
Holt v. United States, 218 U.S. at
218 U. S.
252-253, manifests a recognition that virtually any
communication reveals the contents of the mind of the speaker.
Thus, the Fifth Amendment privilege is fulfilled only when the
person is guaranteed the right "
to remain silent unless he
chooses to speak in the unfettered exercise of his own will.'"
Miranda v. Arizona, 384 U. S. 436,
384 U. S. 460
(1966) (quoting Malloy v. Hogan, 378 U. S.
1, 378 U. S. 8
(1964)). The deviation from this principle can only lead to
mischievous abuse of the dignity the Fifth Amendment commands the
Government afford its citizens. Cf. Schmerber v.
California, 384 U.S. at 384 U. S. 764.
The instant case is illustrative. In allowing the Government to
compel petitioner to execute the directive, the Court permits the
Government to compel petitioner to speak against his will in answer
to the question "Do you consent to the release of these documents."
Beyond this affront, however, the Government is being permitted
also to demand that the answer be "yes."
[
Footnote 2/2]
The Fifth Amendment provides that no person "shall be compelled
in any criminal case to be a
witness against himself." A
witness is one who "gives evidence in a cause." T. Cunningham, 2
New and Complete Law Dictionary (2d ed. 1771). The Court carefully
scrutinizes the particular directive at issue here to determine
whether its "form" or "execution" "communicates any factual
assertions, implicit or explicit, or conveys any information to the
Government."
Ante at
487 U. S. 215.
But the Court's opinion errs in focusing only on whether the
directive reveals historical facts, ignoring that the execution of
the directive
creates new facts and a new piece of
evidence that may be used against petitioner. The Court determines
that the document's form has no testimonial significance because it
does not reveal the identity of any particular banks or acknowledge
the existence of any particular foreign accounts. This much is
true. But the document does reveal exactly what it purports to
reveal, which is that petitioner "directs,"
see ante at
487 U. S.
204-205, n. 2, the release of any documents that conform
to the description contained in the statement. Thus, by executing
the document, petitioner admits a state of mind, a present tense
desire. That the directive asserts that it was executed "pursuant
to" court order does not save petitioner from this compelled
admission. Only the most sophisticated bank officer could be
expected to understand the phrase "pursuant to that certain order,"
ibid., to mean "executed involuntarily under pain of
contempt." But even if the directive expressly revealed its
involuntary character, it would still communicate the direction
that incriminating documents be produced.
By executing the document, petitioner creates evidence that has
independent significance. The Court's opinion does not foreclose
the possibility that the Government will attempt to introduce the
directive itself to create a link between petitioner and whatever
documents the Government is able to secure through use of the
directive. This danger was fully described in an example employed
by the First Circuit in its analysis of a document, which, like the
one at issue here, did not assert the existence of any particular
bank records or accounts:
"Suppose that, at trial, the government were to introduce bank
records produced in response to a subpoena that had been
accompanied by the consent form, and that it was not apparent from
the face of the records or otherwise how [defendant] was linked to
them. Suppose also that the government then introduced the subpoena
and consent form, and a government witness testified that the bank
records were received in response to the subpoena and consent form.
. . . Would not the evidence linking [defendant] to the records be
his own testimonial admission of consent?"
In re Grand Jury Proceedings (Ranauro), 814 F.2d 791,
793 (1987). The example reveals that the compelled execution causes
the creation of evidence that did not exist before, and which,
through the Government's artifice, may become part of the
prosecution's case against petitioner. The example also
demonstrates that the "testimonial" significance of the directive
can only be appreciated if the document is considered in its
completed form from the perspective of an individual who knows no
more about the circumstances of its creation than is revealed on
its face. The fact that the document was produced under compulsion,
which the Court relies on in asserting that the directive "sheds no
light on [petitioner's] actual intent or state of mind,"
ante at
487 U. S. 216,
is not relevant to consideration of the document's testimonial
significance.
A critical issue at any trial at which the Government seeks to
introduce bank records produced by a compulsory directive would be
proof that the documents pertain to accounts within the control of
the defendant. The directive relates the testimonial fact that the
defendant ordered the production of those documents which relate to
any account he has at a bank or trust company or over which he has
signatory authority. Perhaps this testimony alone does not prove
the fact of control, but it is certainly probative of that fact.
The defendant can no longer testify without contradiction from the
face of the directive that he never authorized the production of
records relating to his accounts. The directive that he was
compelled to create testifies against him.