A federal grand jury issued a subpoena to petitioner as the
president of two corporations, requiring him to produce the
corporations' records. The subpoena provided that petitioner could
deliver the records to the agent serving the subpoena, and did not
require petitioner to testify. The corporations involved were
incorporated by petitioner, who is the sole shareholder of one of
them. Petitioner, his wife, and his mother are the directors of
both corporations, and his wife and mother are secretary-treasurer
and vice-president of the corporations, respectively, but neither
has any authority over the corporations' business affairs. The
District Court denied petitioner's motion to quash the subpoena,
holding that the "collective entity doctrine" prevented petitioner
from asserting that his act of producing the corporations' records
was protected by the Fifth Amendment privilege against
self-incrimination. The Court of Appeals affirmed.
The custodian of corporate records may not resist
a subpoena for such records on the ground that the act of
production will incriminate him in violation of the Fifth
Amendment. This Court's precedents as to the development of the
collective entity doctrine do not support petitioner's argument
that, even though the contents of subpoenaed business records are
not privileged, and even though corporations are not protected by
the Fifth Amendment, nevertheless his act of producing the
documents has independent testimonial significance, which would
incriminate him individually, and that the Fifth Amendment
prohibits Government compulsion of that act. If petitioner had
conducted his business as a sole proprietorship, United States
v. Doe, 465 U. S. 605
would require that he be provided the opportunity to show that his
act of production would entail testimonial self-incrimination as to
admissions that the records existed, were in his possession, and
were authentic. However, representatives of a collective entity act
as agents, and the official records of the organization that are
held by them in a representative, rather than a personal, capacity
cannot be the subject of their personal privilege against
self-incrimination, even though production of the papers might tend
to incriminate them personally. The plain mandate of the precedents
is that the corporate entity doctrine applies regardless of the
corporation's size, and regardless of whether the subpoena is
Page 487 U. S. 100
to the corporation or, as here, to the individual in his
capacity as the records' custodian. Any claim of Fifth Amendment
privilege asserted by the agent would be tantamount to a claim of
privilege by the corporation, which possesses no such privilege.
Recognizing a Fifth Amendment privilege on behalf of records
custodians of collective entities would have a detrimental impact
on the Government's efforts to prosecute "white-collar crime." Such
impact cannot be satisfactorily minimized by either granting the
custodian statutory immunity as to the act of production or
addressing the subpoena to the corporation and allowing it to
choose an agent to produce the records who can do so without
incriminating himself. However, since the custodian acts as the
corporation's representative, the act of production is deemed one
of the corporation, not the individual, and the Government may make
no evidentiary use of the "individual act" of production against
the individual. Pp. 487 U. S.
814 F.2d 190, affirmed.
REHNQUIST, C.J., delivered the opinion of the Court, in which
WHITE, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. KENNEDY, J.,
filed a dissenting opinion, in which BRENNAN, MARSHALL, and SCALIA,
JJ., joined, post,
p. 487 U. S.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
This case presents the question whether the custodian of
corporate records may resist a subpoena for such records on the
ground that the act of production would incriminate him in
violation of the Fifth Amendment. We conclude that he may not.
From 1965 to 1980, petitioner Randy Braswell operated his
business -- which comprises the sale and purchase of equipment,
Page 487 U. S. 101
land, timber, and oil and gas interests -- as a sole
proprietorship. In 1980, he incorporated Worldwide Machinery Sales,
Inc., a Mississippi corporation, and began conducting the business
through that entity. In 1981, he formed a second Mississippi
corporation, Worldwide Purchasing, Inc., and funded that
corporation with the 100 percent interest he held in Worldwide
Machinery. Petitioner was and is the sole shareholder of Worldwide
Both companies are active corporations, maintaining their
current status with the State of Mississippi, filing corporate tax
returns, and keeping current corporate books and records. In
compliance with Mississippi law, both corporations have three
directors, petitioner, his wife, and his mother. Although his wife
and mother are secretary-treasurer and vice-president of the
corporations, respectively, neither has any authority over the
business affairs of either corporation.
In August, 1986, a federal grand jury issued a subpoena to
"Randy Braswell, President Worldwide Machinery Sales, Inc. [and]
Worldwide Purchasing, Inc.," App. 6, requiring petitioner to
produce the books and records of the two corporations. [Footnote 1
] The subpoena provided that
petitioner could deliver the records to the agent serving the
subpoena, and did not require petitioner to testify. Petitioner
moved to quash the subpoena, arguing that the act of producing the
records would incriminate him in violation of his Fifth Amendment
privilege against self-incrimination. The District Court denied the
motion to quash, ruling that the "collective entity doctrine"
prevented petitioner from asserting that his act of producing the
corporations' records was protected by the
Page 487 U. S. 102
Fifth Amendment. The court rejected petitioner's argument that
the collective entity doctrine does not apply when a corporation is
so small that it constitutes nothing more than the individual's
The United States Court of Appeals for the Fifth Circuit
affirmed, citing Bellis v. United States, 417 U. S.
, 417 U. S. 88
(1974), for the proposition that a corporation's records custodian
may not claim a Fifth Amendment privilege no matter how small the
corporation may be. The Court of Appeals declared that
retained vitality following United States v.
Doe, 465 U. S. 605
(1984), and therefore,
"Braswell, as custodian of corporate documents, has no act of
production privilege under the fifth amendment regarding corporate
In re Grand Jury Proceedings,
814 F.2d 190, 193 (1987).
We granted certiorari to resolve a conflict among the Courts of
Appeals. [Footnote 2
] 484 U.S.
814 (1987). We now affirm.
There is no question but that the contents of the subpoenaed
business records are not privileged. See Doe, supra; Fisher v.
United States, 425 U. S. 391
(1976). Similarly, petitioner asserts no self-incrimination claim
on behalf of the corporations; it is well established that such
artificial entities are not protected by the Fifth Amendment.
Petitioner instead relies solely upon the
argument that his
Page 487 U. S. 103
act of producing the documents has independent testimonial
significance which would incriminate him individually, and that the
Fifth Amendment prohibits Government compulsion of that act. The
bases for this argument are extrapolated from the decisions of this
Court in Fisher, supra,
and Doe, supra.
the Court was presented with the question
whether an attorney may resist a subpoena demanding that he produce
tax records which had been entrusted to him by his client. The
records in question had been prepared by the client's accountants.
In analyzing the Fifth Amendment claim forwarded by the attorney,
the Court considered whether the client-taxpayer would have had a
valid Fifth Amendment claim had he retained the records and the
subpoena been issued to him. After explaining that the Fifth
Amendment prohibits "compelling a person to give testimony'
that incriminates him," 425 U.S. at 425 U. S. 409,
the Court rejected the argument that the contents of the records
were protected. The Court, however, went on to observe:
"The act of producing evidence in response to a subpoena
nevertheless has communicative aspects of its own, wholly aside
from the contents of the papers produced. Compliance with the
subpoena tacitly concedes the existence of the papers demanded and
their possession or control by the taxpayer. It also would indicate
the taxpayer's belief that the papers are those described in the
subpoena. Curcio v. United States, 354 U. S.
, 354 U. S. 125
elements of compulsion are clearly present, but the more difficult
issues are whether the tacit averments of the taxpayer are both
'testimonial' and 'incriminating' for purposes of applying the
Fifth Amendment. These questions perhaps do not lend themselves to
categorical answers; their resolution may instead depend on the
facts and circumstances of particular cases or classes
at 425 U. S.
Page 487 U. S. 104
The Court concluded that, under the "facts and circumstances"
there presented, the act of producing the accountants' papers would
not "involve testimonial self-incrimination." Id.
425 U. S. 411
Eight years later, in United States v. Doe, supra,
Court revisited the question, this time in the context of a claim
by a sole proprietor that the compelled production of business
records would run afoul of the Fifth Amendment. After rejecting the
contention that the contents of the records were themselves
protected, the Court proceeded to address whether respondent's act
of producing the records would constitute protected testimonial
incrimination. The Court concluded that respondent had established
a valid Fifth Amendment claim. It deferred to the lower courts,
which had found that enforcing the subpoenas at issue would provide
the Government valuable information: by producing the records,
respondent would admit that the records existed, were in his
possession, and were authentic. 465 U.S. at 465 U. S. 613
Had petitioner conducted his business as a sole proprietorship,
would require that he be provided the opportunity to
show that his act of production would entail testimonial
self-incrimination. But petitioner has operated his business
through the corporate form, and we have long recognized that, for
purposes of the Fifth Amendment, corporations and other collective
entities are treated differently from individuals. This doctrine --
known as the collective entity rule -- has a lengthy and
Page 487 U. S. 105
The rule was first articulated by the Court in the case of
Hale v. Henkel, 201 U. S. 43
(1906). Hale, a corporate officer, had been served with a subpoena
ordering him to produce corporate records and to testify concerning
certain corporate transactions. Although Hale was protected by
personal immunity, he sought to resist the demand for the records
by interposing a Fifth Amendment privilege on behalf of the
corporation. The Court rejected that argument:
"[W]e are of the opinion that there is a clear distinction . . .
between an individual and a corporation, and . . . the latter has
no right to refuse to submit its books and papers for an
examination at the suit of the State."
at 201 U. S. 74
The Court explained that the corporation "is a creature of the
with powers limited by the State. As such,
the State may, in the exercise of its right to oversee the
corporation, demand the production of corporate records.
at 201 U. S.
The ruling in Hale
represented a limitation on the
prior holding in Boyd v. United States, 116 U.
(1886), which involved a court order directing
partners to produce an invoice received by the partnership. The
partners had produced the invoice, but steadfastly maintained that
the court order ran afoul of the Fifth Amendment. This Court
agreed. After concluding that the order transgressed the Fourth
Amendment, the Court declared:
"[A] compulsory production of the private
papers of the owner of goods sought to be forfeited . . . is
compelling him to be a witness against himself, within the meaning
of the Fifth Amendment to the Constitution. . . ."
at 116 U. S.
-635 (emphasis added). Hale
exception out of Boyd
by.establishing that corporate books
and records are not "private papers" protected by the Fifth
settled that a corporation has no Fifth
Amendment privilege, the Court did not address whether a corporate
officer could resist a subpoena for corporate records by invoking
his personal privilege -- Hale had been protected by immunity. In
Wilson v. United
Page 487 U. S. 106
361 (1911), the Court answered that question in the negative.
There, a grand jury investigating Wilson had issued a subpoena to a
corporation demanding the production of corporate letterpress copy
books, which Wilson, the corporation's president, possessed. Wilson
refused to produce the books, arguing that the Fifth Amendment
prohibited compulsory production of personally incriminating books
that he held and controlled. The Court rejected this argument,
observing first that the records sought were not private or
personal, but rather belonged to the corporation. The Court
"[Wilson] held the corporate books subject to the corporate
duty. If the corporation were guilty of misconduct, he could not
withhold its books to save it; and if he were implicated in the
violations of law, he could not withhold the books to protect
himself from the effect of their disclosures. The [State's]
reserved power of visitation would seriously be embarrassed, if not
wholly defeated in its effective exercise, if guilty officers could
refuse inspection of the records and papers of the corporation. No
personal privilege to which they are entitled requires such a
conclusion. . . . [T]he visitatorial power which exists with
respect to the corporation of necessity reaches the corporate books
without regard to the conduct of the custodian."
at 221 U. S.
". . . When [Wilson] became president of the corporation and, as
such, held and used its books for the transaction of its business
committed to his charge, he was at all times subject to its
direction, and the books continuously remained under its control.
If another took his place, his custody would yield. He could assert
no personal right to retain the corporate books against any demand
of government which the corporation was bound to recognize."
at 221 U. S.
In a companion case, Dreier v. United States,
221 U. S. 394
(1911), the Court applied the holding in Wilson to a Fifth
Page 487 U. S. 107
Amendment attack on a subpoena addressed to the corporate
custodian. Although the subpoena in Wilson had been addressed to
the corporation, the Court found the distinction irrelevant:
"Dreier was not entitled to refuse the production of the
corporate records. By virtue of the fact that they were the
documents of the corporation in his custody, and not his private
papers, he was under the obligation to produce them when called for
by proper process."
221 U.S. at 221 U. S. 400
The next significant step in the development of the collective
entity rule occurred in United States v. White,
322 U. S. 694
(1944), in which the Court held that a labor union is a collective
entity unprotected by the Fifth Amendment. There, a grand jury had
issued a subpoena addressed to a union requiring the production of
certain union records. White, an assistant supervisor of the union,
appeared before the grand jury and declined to produce the
documents "upon the ground that they might tend to incriminate
[the union], myself as an officer thereof, or individually.'"
Id. at 322 U. S.
We upheld an order of contempt against White, reasoning first
that the Fifth Amendment privilege applies only to natural
individuals and protects only private papers. Representatives of a
"collective group" act as agents,
"[a]nd the official records and documents of the organization
that are held by them in a representative, rather than in a
personal, capacity cannot be the subject of the personal privilege
against self-incrimination, even though production of the papers
might tend to incriminate them personally."
at 322 U. S. 699
With this principle in mind, the Court turned to whether a union is
a collective group:
"The test . . . is whether one can fairly say. under all the
circumstances. that a particular type of organization has a
character so impersonal in the scope of its membership and
activities that it cannot be said to embody or represent the purely
private or personal interests of its constituents, but rather to
embody their common or group interests only. If so, the privilege
cannot be invoked
Page 487 U. S. 108
on behalf of the organization or its representatives in their
official capacity. Labor unions -- national or local, incorporated
or unincorporated -- clearly meet that test."
at 322 U. S. 701
In applying the collective entity rule to unincorporated
associations such as unions, the Court jettisoned reliance on the
visitatorial powers of the State over corporations owing their
existence to the State -- one of the bases for earlier decisions.
at 322 U. S.
The frontiers of the collective entity rule were expanded even
further in Bellis v. United States, 417 U. S.
(1974), in which the Court ruled that a partner in a
small partnership could not properly refuse to produce partnership
records. Bellis, one of the members of a three-person law firm that
had previously been dissolved, was served with a subpoena directing
him to produce partnership records he possessed. The District Court
held Bellis in contempt when he refused to produce the
partnership's financial books and records. We upheld the contempt
order. After rehearsing prior precedent involving corporations and
unincorporated associations, the Court examined the partnership
form and observed that it had many of the incidents found relevant
in prior collective entity decisions. The Court suggested that the
test articulated in White, supra,
for determining the
applicability of the Fifth Amendment to organizations was "not
particularly helpful in the broad range of cases." 417 U.S. at
417 U. S. 100
The Court rejected the notion that the
"formulation in White
can be reduced to a simple
proposition based solely upon the size of the organization. It is
well settled that no privilege can be claimed by the custodian of
corporate records, regardless of how small the corporation may
held the partnership's financial
records in "a representative capacity," id.
417 U. S. 101
and therefore, "his personal privilege against compulsory
self-incrimination is inapplicable." Ibid.
The plain mandate of these decisions is that, without regard to
whether the subpoena is addressed to the corporation, or,
Page 487 U. S. 109
as here, to the individual in his capacity as a custodian,
see Dreier, supra; Bellis, supra,
a corporate custodian
such as petitioner may not resist a subpoena for corporate records
on Fifth Amendment grounds. Petitioner argues, however, that this
rule falls in the wake of Fisher v. United States,
425 U. S. 391
(1976), and United States v. Doe, 465 U.
(1984). In essence, petitioner's argument is as
follows: in response to Boyd v. United States,
116 U. S. 616
(1886), with its privacy rationale shielding personal books and
records, the Court developed the collective entity rule, which
declares simply that corporate records are not private, and
therefore are not protected by the Fifth Amendment. The collective
entity decisions were concerned with the contents of the documents
subpoenaed, however, and not with the act of production. In
the Court moved away from the
privacy-based collective entity rule, replacing it with a
compelled-testimony standard under which the contents of business
documents are never privileged, but the act of producing the
documents may be. Under this new regime, the act of production
privilege is available without regard to the entity whose records
are being sought. See In re Grand Jury Matter (Brown),
F.2d 525, 528 (CA3 1985) (en banc) ("[Fisher
] make the significant factor, for the privilege
against self-incrimination, neither the nature of entity which owns
the documents nor the contents of documents, but rather the
communicative or noncommunicative nature of the arguably
incriminating disclosures sought to be compelled").
To be sure, the holding in Fisher
-- later reaffirmed
-- embarked upon a new course of Fifth Amendment
analysis. See Fisher, supra,
at 425 U. S. 409
We cannot agree, however, that it rendered the collective entity
rule obsolete. The agency rationale undergirding the collective
entity decisions, in which custodians asserted that production of
entity records would incriminate them personally, survives. From
forward, the Court has consistently recognized that
Page 487 U. S. 110
of corporate or entity records holds those documents in a
representative, rather than a personal, capacity. Artificial
entities such as corporations may act only through their agents,
417 U. S. 90
, and a custodian's assumption of his
representative capacity leads to certain obligations, including the
duty to produce corporate records on proper demand by the
Government. Under those circumstances, the custodian's act of
production is not deemed a personal act, but rather an act of the
corporation. Any claim of Fifth Amendment privilege asserted by the
agent would be tantamount to a claim of privilege by the
corporation -- which of course possesses no such privilege.
"[B]y virtue of their character and the rules of law applicable
to them, the books and papers are held subject to examination by
the demanding authority, the custodian has no privilege to refuse
production, although their contents tend to criminate him. In
assuming their custody, he has accepted the incident obligation to
221 U.S. at 221 U. S.
"Nothing more is demanded than that the appellant should perform
the obligations pertaining to his custody and should produce the
books which he holds in his official capacity in accordance with
the requirements of the subpoena."
at 221 U. S.
This theme was echoed in White:
"But individuals, when acting as representatives of a collective
group, cannot be said to be exercising their personal rights and
duties, nor to be entitled to their purely personal privileges.
Rather, they assume the rights, duties and privileges of the
artificial entity or association of which they are agents or
officers, and they are bound by its obligations. In their official
capacity, therefore, they have no privilege against
self-incrimination. And the official records and documents of the
organization that are held by them in a representative, rather than
in a personal, capacity cannot be the subject of the personal
privilege against self-incrimination, even though production
Page 487 U. S. 111
of the papers might tend to incriminate them personally."
322 U.S. at 322 U. S. 699
In Dreier, 221 U. S. 394
(1911), and Bellis, 417 U. S. 85
(1974), the subpoenas were addressed to the custodians and demanded
that they produce the records sought. In both cases, the
custodian's act of producing the documents would "tacitly admi[t]
their existence and their location in the hands of their
possessor," Fisher, supra,
at 425 U. S.
-412. Nevertheless, the Court rejected the Fifth
Amendment claims advanced by the custodians. Although the Court did
not focus on the testimonial aspect of the act of production, we do
not think such a focus would have affected the results reached. "It
is well settled that no privilege can be claimed by the custodian
of corporate records. . . ." Bellis, supra,
417 U. S.
Indeed, the opinion in Fisher
-- upon which petitioner
places primary reliance [Footnote
] -- indicates that the custodian of corporate records may not
interpose a Fifth Amendment objection to
Page 487 U. S. 112
the compelled production of corporate records, even though the
act of production may prove personally incriminating. The
Court cited the collective entity decisions with
approval and offered those decisions to support the conclusion that
the production of the accountant's workpapers would "not . . .
involve testimonial self-incrimination." 425 U.S. at 425 U. S. 411
The Court observed:
"This Court has . . . time and again allowed subpoenas against
the custodian of corporate documents or those belonging to other
collective entities such as unions and partnerships and those of
bankrupt businesses over claims that the documents will incriminate
the custodian despite the fact that producing the documents tacitly
admits their existence and their location in the hands of their
at 425 U. S.
-412. The Court later noted that,
"in Wilson, Dreier, White, Bellis,
and In re
(1911)], the custodian of corporate, union, or partnership
books or those of a bankrupt business was ordered to respond to a
subpoena for the business' books even though doing so involved a
'representation that the documents produced are those demanded by
the subpoena,' Curcio v. United States,
354 U.S. at
354 U. S. 125
at 425 U. S. 413
(citations omitted). In a footnote, the Court explained:
"In these cases, compliance with the subpoena is required even
though the books have been kept by the person subpoenaed and his
producing them would itself be sufficient authentication to permit
their introduction against him."
at 425 U. S. 413
n. 14. The Court thus reaffirmed the obligation of a corporate
custodian to comply with a subpoena addressed to him.
That point was reiterated by JUSTICE BRENNAN in his concurrence
in Fisher. Id.
at 425 U. S. 429
(concurring in judgment). Although JUSTICE BRENNAN disagreed with
the majority as to its use of the collective entity cases to
support the proposition that the act of production is not
testimonial, he nonetheless acknowledged that a custodian may not
resist a subpoena
Page 487 U. S. 113
on the ground that the act of production would be
"Nothing in the language of [the collective entity] cases,
either expressly or impliedly, indicates that the act of production
with respect to the records of business entities is insufficiently
testimonial for purposes of the Fifth Amendment. At most, those
issues, though considered, were disposed of on the ground, not that
production was insufficiently testimonial, but that one in control
of the records of an artificial organization undertakes an
obligation with respect to those records foreclosing any exercise
of his privilege."
at 425 U. S.
-430; see also id.
at 425 U. S. 430
n. 9. Thus, whether one concludes -- as did the Court -- that a
custodian's production of corporate records is deemed not to
constitute testimonial self-incrimination, or instead that a
custodian waives the right to exercise the privilege, the lesson of
is clear: a custodian may not resist a subpoena for
corporate records on Fifth Amendment grounds.
Petitioner also attempts to extract support for his contention
from Curcio v. United States, 354 U.
(1957). But rather than bolstering petitioner's
argument, we think Curcio
substantiates the Government's
position. Curcio had been served with two subpoenas addressed to
him in his capacity as secretary-treasurer of a local union, which
was under investigation. One subpoena required that he produce
union books, the other that he testify. Curcio appeared before the
grand jury, stated that the books were not in his possession, and
refused to answer any questions as to their whereabouts. Curcio was
held in contempt for refusing to answer the questions propounded.
We reversed the contempt citation, rejecting the Government's
"that the representative duty which required the production of
union records in the White
case requires the giving of
oral testimony by the custodian."
at 354 U. S.
Petitioner asserts that our Curcio
decision stands for
the proposition that, although the contents of a collective
Page 487 U. S. 114
records are unprivileged, a representative of a collective
entity cannot be required to provide testimony about those records.
It follows, according to petitioner, that, because Fisher
recognizes that the act of production is potentially testimonial,
such an act may not be compelled if it would tend to incriminate
the representative personally. We find this reading of
Court made clear that, with respect to a
custodian of a collective entity's records, the line drawn was
between oral testimony and other forms of incrimination.
"A custodian, by assuming the duties of his office, undertakes
the obligation to produce the books of which he is custodian in
response to a rightful exercise of the State's visitorial powers.
But he cannot lawfully be compelled, in the absence of a grant of
adequate immunity from prosecution, to condemn himself by his own
354 U.S. at 354 U. S.
-124 (emphasis added). [Footnote 6
In distinguishing those cases in which a corporate officer was
required to produce corporate records and merely identify them by
oral testimony, the Court showed that it understood the testimonial
nature of the act of production:
"The custodian's act of producing books or records in response
to a subpoena duces tecum
is itself a representation that
the documents produced are those demanded by the subpoena.
Requiring the custodian to identify or authenticate the documents
for admission in evidence merely makes explicit what is implicit in
the production itself."
at 354 U. S. 125
In the face of this recognition, the Court nonetheless noted:
"In this case, petitioner might have been proceeded against for
Page 487 U. S. 115
to produce the records demanded by the subpoena duces
at 354 U. S. 127
n. 7. As JUSTICE BRENNAN later observed in his concurrence in
"The Court in Curcio,
however, apparently did not note
any self-incrimination problem [with the testimonial significance
of the act of production] because of the undertaking by the
custodian with respect to the documents."
425 U.S. at 425 U. S. 430
n. 9. [Footnote 8
We note further that recognizing a Fifth Amendment privilege on
behalf of the records custodians of collective entities would have
a detrimental impact on the Government's efforts to prosecute
"white-collar crime," one of the most serious problems confronting
law enforcement authorities. [Footnote 9
"The greater portion of evidence of wrongdoing by an
organization or its representatives is usually found in the
official records and documents of that organization. Were the cloak
of the privilege to be thrown around these impersonal records and
documents, effective enforcement of many federal and state laws
would be impossible."
322 U.S. at 322 U. S. 700
Page 487 U. S. 116
custodians could assert a privilege, authorities would be
stymied not only in their enforcement efforts against those
individuals, but also in their prosecutions of organizations. In
the Court observed:
"In view of the inescapable fact that an artificial entity can
only act to produce its records through its individual officers or
agents, recognition of the individual's claim of privilege with
respect to the financial records of the organization would
substantially undermine the unchallenged rule that the organization
itself is not entitled to claim any Fifth Amendment privilege, and
largely frustrate legitimate governmental regulation of such
417 U.S. at 417 U. S.
Petitioner suggests, however, that these concerns can be
minimized by the simple expedient of either granting the custodian
statutory immunity as to the act of production, 18 U.S.C. §§ 6002,
6003, or addressing the subpoena to the corporation and allowing it
to chose an agent to produce the records who can do so without
incriminating himself. We think neither proposal satisfactorily
addresses these concerns. Taking the last first, it is no doubt
true that, if a subpoena is addressed to a corporation, the
corporation "must find some means by which to comply, because no
Fifth Amendment defense is available to it." In re Sealed
266 U.S.App.D.C. 30, 44, n. 9, 832 F.2d 1268, 1282, n. 9
(1987). The means most commonly used to comply is the appointment
of an alternate custodian. See, e.g., In re Two Grand Jury
Subpoenae Duces Tecum,
769 F.2d 52, 57 (CA2 1985); United
States v. Lang,
792 F.2d 1235, 1240-1241 (CA4), cert.
479 U.S. 985 (1986), In re Grand Jury No. 86-3
(Will Roberts Corp.),
816 F.2d 569, 573 (CA11 1987). But
petitioner insists he cannot be required to aid the appointed
custodian in his search for the demanded records, for any statement
to the surrogate would itself be testimonial and incriminating. If
this is correct, then petitioner's "solution" is a chimera. In
situations such as this -- where the corporate custodian is likely
the only person with knowledge
Page 487 U. S. 117
about the demanded documents -- the appointment of a surrogate
will simply not ensure that the documents sought will ever reach
the grand jury room; the appointed custodian will essentially be
sent on an unguided search.
This problem is eliminated if the Government grants the
subpoenaed custodian statutory immunity for the testimonial aspects
of his act of production. But that "solution" also entails a
significant drawback. All of the evidence obtained under a grant of
immunity to the custodian may of course be used freely against the
corporation, but if the Government has any thought of prosecuting
the custodian, a grant of act of production immunity can have
serious consequences. Testimony obtained pursuant to a grant of
statutory use immunity may be used neither directly nor
derivatively. 18 U.S.C. § 6002; Kastigar v. United States,
406 U. S. 441
"[o]ne raising a claim under [the federal immunity] statute need
only show that he testified under a grant of immunity in order to
shift to the government the heavy burden of proving that all of the
evidence it proposes to use was derived from legitimate independent
at 406 U. S.
-462. Even in cases where the Government does not
employ the immunized testimony for any purpose -- direct or
derivative -- against the witness, the Government's inability to
meet the "heavy burden" it bears may result in the preclusion of
crucial evidence that was obtained legitimately. [Footnote 10
Although a corporate custodian is not entitled to resist a
subpoena on the ground that his act of production will be
personally incriminating, we do think certain consequences flow
from the fact that the custodian's act of production is one in
Page 487 U. S. 118
his representative, rather than personal, capacity. Because the
custodian acts as a representative, the act is deemed one of the
corporation, and not the individual. Therefore, the Government
concedes, as it must, that it may make no evidentiary use of the
"individual act" against the individual. For example, in a criminal
prosecution against the custodian, the Government may not introduce
into evidence before the jury the fact that the subpoena was served
upon and the corporation's documents were delivered by one
particular individual, the custodian. The Government has the right,
however, to use the corporation's act of production against the
custodian. The Government may offer testimony -- for example, from
the process server who delivered the subpoena and from the
individual who received the records -- establishing that the
corporation produced the records subpoenaed. The jury may draw from
the corporation's act of production the conclusion that the records
in question are authentic corporate records, which the corporation
possessed, and which it produced in response to the subpoena. And
if the defendant held a prominent position within the corporation
that produced the records, the jury may, just as it would had
someone else produced the documents, reasonably infer that he had
possession of the documents or knowledge of their contents. Because
the jury is not told that the defendant produced the records, any
nexus between the defendant and the documents results solely from
the corporation's act of production and other evidence in the case.
Page 487 U. S. 119
Consistent with our precedent, the United States Court of
Appeals for the Fifth Circuit ruled that petitioner could not
resist the subpoena for corporate documents on the ground that the
act of production might tend to incriminate him. The judgment is
The subpoena requested the following: receipts and disbursement
journals; general ledger and subsidiaries; accounts
receivable/accounts payable ledgers, cards, and all customer data;
bank records of savings and checking accounts, including
statements, checks, and deposit tickets; contracts, invoices --
sales and purchase -- conveyances, and correspondence; minutes and
stock books and ledgers; loan disclosure statements and agreements;
liability ledgers; and retained copies of Forms 1120, W-2, W-4,
1099, 940 and 941.
Compare In re Grand Jury Proceedings (Morganstern),
F.2d 143 (CA6 1985) (en banc), cert. denied,
474 U.S. 1033
(1985); In re Grand Jury Subpoena
(85-W-71-5), 784 F.2d
857 (CA8 1986), cert. dism'd sub nom. See v. United
479 U.S. 1048 (1987); United States v. Malis,
737 F.2d 1511 (CA9 1984); In re Grand Jury Proceedings
727 F.2d 941 (CA10), cert. denied,
819 (1984), which have refused to recognize a Fifth Amendment
privilege, with United States v. Antonio J. Sancetta, M.D.,
788 F.2d 67, 74 (CA2 1986); In re Grand Jury Matter
768 F.2d 525 (CA3 1985) (en banc); United States
792 F.2d 1235, 1240 (CA4), cert. denied,
U.S. 985 (1986); In re Grand Jury No. 86-3 (Will Roberts
816 F.2d 569, 573 (CA11 1987); In re Sealed
266 U.S.App.D.C. 30, 832 F.2d 1268 (1987), which have
recognized a Fifth Amendment privilege.
After observing that the papers in question had been prepared by
the taxpayer's accountants, the Court noted:
"The existence and location of the papers are a foregone
conclusion, and the taxpayer adds little or nothing to the sum
total of the Government's information by conceding that he in fact
has the papers."
425 U.S. at 425 U. S. 411
Nor would the taxpayer's production of the papers serve to
authenticate or vouch for the accuracy of the accountants' work.
at 425 U. S.
See also Bellis,
417 U.S. at 417 U. S. 88
("[A]n individual cannot rely upon the privilege to avoid producing
the records of a collective entity which are in his possession in a
representative capacity, even if these records might incriminate
him personally"); Essgee Co. of China v. United States,
262 U. S. 151
262 U. S. 158
(1923) ("[T]he cases of Hale v. Henkel, 201 U. S.
, Wilson v. United States, 221 U.
, and Wheeler v. United States,
226 U. S. 478
show clearly that an officer of a corporation in whose custody are
its books and papers is given no right to object to the production
of the corporate records because they may disclose his guilt. He
does not hold them in his private capacity and is not, therefore,
protected against their production or against a writ requiring him
as agent of the corporation to produce them").
Petitioner also offers United States v. Doe,
465 U. S. 605
(1984), as support for his position, but that decision is plainly
inapposite. The Doe
opinion begins by explaining that the
question presented for review is
"whether, and to what extent, the Fifth Amendment privilege
against compelled self-incrimination applies to the business
records of a sole proprietorship.
at 465 U. S. 606
(emphasis added). A sole proprietor does not hold records in a
representative capacity. Thus, the absence of any discussion of the
collective entity rule can in no way be thought a suggestion that
the status of the holder of the records is irrelevant.
354 U.S. at 354 U. S.
-125 ("There is no hint in [the collective entity]
decisions that a custodian of corporate or association books waives
his constitutional privilege as to oral testimony by assuming the
duties of his office. By accepting custodianship of records he
has voluntarily assumed a duty which overrides his claim of
privilege' only with respect to the production of the
records themselves. Wilson v. United States, 221 U.
S. 361, 221 U. S.
380") (emphasis in original).
The dissent's suggestion that we have extracted from
a distinction between oral testimony and act of
production testimony that is nowhere found in the Curcio
opinion, see post
at 487 U. S. 126
simply ignores this part of Curcio.
Similarly, the dissent
pays mere lipservice to the agency rationale supporting an unbroken
chain of collective entity decisions. We have consistently held
that, for Fifth Amendment purposes, a corporate custodian acts in a
representative capacity when he produces corporate documents under
the compulsion of a subpoena. The dissent's failure to recognize
this principle, and its suggestion that petitioner was not called
upon to act in his capacity as an agent of the corporations, cannot
be squared with our previous decisions.
Doubtless, the compelled production of the records at issue in
the subsequent Bellis
decision would have had testimonial
implications; the Court nonetheless upheld the contempt order.
Bellis v. United States, 417 U. S. 85
White-collar crime is "the most serious and all-pervasive crime
problem in America today." Conyers, Corporate and White-Collar
Crime: A View by the Chairman of the House Subcommittee on Crime,
17 Am.Crim.L.Rev. 287, 288 (1980). Although this statement was made
in 1980, there is no reason to think the problem has diminished in
The dissent asserts that recognition of an act of production
privilege on behalf of corporate custodians will not seriously
undermine law enforcement efforts directed against those
custodians, because only the custodian's act of production need be
immunized. See post
at 487 U. S. 130
But the burden of proving an independent source that a grant of
immunity places on the Government could, in our view, have just
such a deleterious effect on law enforcement efforts.
We reject the suggestion that the limitation on the evidentiary
use of the custodian's act of production is the equivalent of
constructive use immunity barred under our decision in
465 U.S. at 465 U. S.
-617. Rather, the limitation is a necessary
concomitant of the notion that a corporate custodian acts as an
agent, and not an individual, when he produces corporate records in
response to a subpoena addressed to him in his representative
We leave open the question whether the agency rationale supports
compelling a custodian to produce corporate records when the
custodian is able to establish, by showing for example that he is
the sole employee and officer of the corporation, that the jury
would inevitably conclude that he produced the records.
JUSTICE KENNEDY, with whom JUSTICE BRENNAN, JUSTICE MARSHALL,
and JUSTICE SCALIA join, dissenting.
Our long course of decisions concerning artificial entities and
the Fifth Amendment served us well. It illuminated two of the
critical foundations for the constitutional guarantee against
self-incrimination: first, that it is an explicit right of a
natural person, protecting the realm of human thought and
expression; second, that it is confined to governmental
It is regrettable that the very line of cases which at last
matured to teach these principles is now invoked to curtail them,
for the Court rules that a natural person forfeits the privilege in
a criminal investigation directed against him, and that the
Government may use compulsion to elicit testimonial assertions from
a person who faces the threat of criminal proceedings. A case that
might have served as the paradigmatic expression of the purposes
served by the Fifth Amendment instead is used to obscure them.
The Court today denies an individual his Fifth Amendment
privilege against self-incrimination in order to vindicate the rule
that a collective entity which employs him has no such privilege
itself. To reach this ironic conclusion, the majority must blur an
analytic clarity in Fifth Amendment doctrine that has taken almost
a century to emerge. After holding that corporate employment strips
the individual of his privilege, the Court then attempts to restore
some measure of protection by its judicial creation of a new zone
Page 487 U. S. 120
in some vaguely defined circumstances. This exercise admits what
the Court denied in the first place, namely, that compelled
compliance with the subpoena implicates the Fifth Amendment
The majority's apparent reasoning is that collective entities
have no privilege, and so their employees must have none either.
The Court holds that a corporate agent must incriminate himself
even when he is named in the subpoena and is a target of the
investigation, and even when it is conceded that compliance
requires compelled, personal, testimonial, incriminating
assertions. I disagree with that conclusion; find no precedent for
it; maintain that, if there is a likelihood of personal
self-incrimination the narrow use immunity permitted by statute can
be granted without frustrating the investigation of collective
entities; and submit that basic Fifth Amendment principles should
not be avoided and manipulated, which is the necessary effect of
There is some common ground in this case. All accept the
longstanding rule that labor unions, corporations, partnerships,
and other collective entities have no Fifth Amendment
self-incrimination privilege; that a natural person cannot assert
such a privilege on their behalf; and that the contents of business
records prepared without compulsion can be used to incriminate even
a natural person without implicating Fifth Amendment concerns.
Further, all appear to concede, or at least submit the case to us
on the assumption, that the act of producing the subpoenaed
documents will effect personal incrimination of Randy Braswell, the
individual to whom the subpoena is directed.
The petitioner's assertion of the Fifth Amendment privilege
against the forced production of documents is based not on any
contention that their contents will incriminate him, but instead
upon the unchallenged premise that the act of production will do
so. When the case is presented on this assumption,
Page 487 U. S. 121
there exists no historical or logical relation between the
so-called collective entity rule and the individual's claim of
privilege A brief review of the foundational elements of the
Self-Incrimination Clause and of our cases respecting collective
entities is a necessary starting point.
In Boyd v. United States, 116 U.
(1886), we held that the compelled disclosure of
the contents of "private papers" (which in Boyd
business invoice), id.
at 116 U. S. 622
was prohibited not only by the Fifth Amendment, but by the Fourth
Amendment as well. The decision in Boyd
generated nearly a
century of doctrinal ambiguity as we explored its rationale and
sought to define its protection for the contents of business
records under the Fifth Amendment.
That effort was not always successful. As we recently
reasoning is in many respects
inconsistent with our present understanding of the Fourth and Fifth
Amendments, and "[s]everal of Boyd's
express or implicit
declarations have not stood the test of time." Fisher v. United
States, 425 U. S. 391
425 U. S. 407
(1976). Its essential premise was rejected four years ago, when we
held that the contents of business records produced by subpoena are
not privileged under the Fifth Amendment, absent some showing that
the documents were prepared under compulsion. United States v.
Doe, 465 U. S. 605
465 U. S.
-611, n. 8 (1984) (Doe I
). Our holding
followed from a straightforward reading of the Fifth Amendment
privilege. We held that, unless the Government has somehow
compelled the preparation of a business document, nothing in the
Fifth Amendment prohibits the use of the writing in a criminal
investigation or prosecution. Id.
at 465 U. S.
A subpoena does not, however, seek to compel creation of a
document; it compels its production. We recognized this distinction
holding that the act of producing documents
itself may communicate information separate from the
Page 487 U. S. 122
documents' contents, and that such communication, in some
circumstances, is compelled testimony. An individual who produces
documents may be asserting that they satisfy the general
description in the subpoena, or that they were in his possession or
under his control. Those assertions can convey information about
that individual's knowledge and state of mind as effectively as
spoken statements, and the Fifth Amendment protects individuals
from having such assertions compelled by their own acts.
This is well-settled law, or so I had assumed. In Doe
for example, when we reviewed a claim of Fifth Amendment
privilege asserted by a sole proprietor in response to a Government
subpoena for his business records, our opinion announced two
principal holdings. First, we unequivocally rejected the notion,
derived from Boyd,
that any protection attached to their
contents. 465 U.S. at 465 U. S. 612
Second, in reliance on the findings of the District Court that
production would be testimonial and self-incriminating, we upheld
the claim that the act of producing these documents was privileged.
at 465 U. S.
-614. Our second holding did not depend on who owned
the papers, how they were created, or what they said; instead, we
rested on the fact that "the act of producing the documents would
involve testimonial self-incrimination." Id.
465 U. S. 613
That principle ought to be sufficient to resolve the case before
The majority does not challenge the assumption that compliance
with the subpoena here would require acts of testimonial
self-incrimination from Braswell; indeed, the Government itself
made this assumption in submitting its argument. Tr. of Oral Arg.
26, 36. The question presented, therefore, is whether an individual
may be compelled, simply by virtue of his status as a corporate
custodian, to perform a testimonial act which will incriminate him
personally. The majority relies entirely on the collective entity
rule in holding that such compulsion is constitutional.
Page 487 U. S. 123
The collective entity rule provides no support for the
majority's holding. The rule, as the majority chooses to call it,
actually comprises three distinct propositions, none of which is
relevant to the claim in this case. First, since Hale v.
Henkel, 201 U. S. 43
(1906), it has been understood that a corporation has no Fifth
Amendment privilege, and cannot resist compelled production of its
documents on grounds that it will be incriminated by their release.
Second, our subsequent opinions show the collective entity
principle is not confined to corporations, and we apply it as well
to labor unions, United States v. White, 322 U.
(1944), and partnerships, Bellis v. United
States, 417 U. S. 85
(1974). Finally, in Wilson v. United States, 221 U.
(1911), we extended the rule beyond the
collective entity itself and rejected an assertion of privilege by
a corporate custodian who had claimed that the disclosure of the
contents of subpoenaed corporate documents would incriminate him.
at 221 U. S. 363
In none of the collective entity cases cited by the majority, and
in none that I have found, were we presented with a claim that the
custodian would be incriminated by the act of production, in
contrast to the contents of the documents.
The distinction is central. Our holding in Wilson
premised squarely on the fact that the custodian's claim rested on
the potential for incrimination in the documents' contents, and we
reasoned that the State's visitatorial powers over corporations
included the authority to inspect corporate books. We compared the
issue to that presented by cases involving public papers,
"where, by virtue of their character and the rules of law
applicable to them, the books and papers are held subject to
examination by the demanding authority, the custodian has no
privilege to refuse production, although their contents tend to
at 221 U. S. 382
Our decision in Wilson
and in later collective entity
cases reflected, I believe, the Court's understandable unease with
drawing too close a connection between an individual
Page 487 U. S. 124
and an artificial entity. On a more practical level, the Court
was also unwilling to draw too close a connection between the
custodian and the contents of business documents over which he had
temporary control, but which belonged to his employer, often were
prepared by others, and in all events were prepared voluntarily.
This last factor became the focus of our analysis in
where we made clear that the applicability of the
Fifth Amendment privilege depends on compulsion. Fisher
put to rest the notion that a privilege may be claimed with respect
to the contents of business records that were voluntarily
The act of producing documents stands on an altogether different
footing. While a custodian has no necessary relation to the
contents of documents within his control, the act of production is
inescapably his own. Production is the precise act compelled by the
subpoena, and obedience, in some cases, will require the
custodian's own testimonial assertions. That was the basis of our
recognition of the privilege in Doe I.
possessing the documents in Doe I
was, as the majority
points out, a sole proprietorship, not a corporation, partnership,
or labor union. But the potential for self-incrimination inheres in
the act demanded of the individual, and, as a consequence, the
nature of the entity is irrelevant to determining whether there is
ground for the privilege.
A holding that the privilege against self-incrimination applies
in the context of this case is required by the precedents, and not,
as the Government and the majority suggest, inconsistent with them.
The collective entity rule established in Hale v. Henkel,
and extended in White
It also continues to be the rule, as we held in Wilson,
that custodians of a collective entity are not permitted to claim a
personal privilege with respect to the contents of entity records,
although that rule now derives not from the unprotected status of
collective entities, but from the more rational principle,
established by Fisher
and Doe I
Page 487 U. S. 125
recognized, that no one may claim a privilege with respect to
the contents of business records not created by compulsion.
The question before us is not the existence of the collective
entity rule, but whether it contains any principle which overrides
the personal Fifth Amendment privilege of someone compelled to give
incriminating testimony. Our precedents establish a firm basis for
assertion of the privilege. Randy Braswell, like the respondent in
is being asked to draw upon his personal knowledge
to identify and to deliver documents which are responsive to the
Government's subpoena. Once the Government concedes there are
testimonial consequences implicit in the act of production, it
cannot escape the conclusion that compliance with the subpoena is
indisputably Braswell's own act. To suggest otherwise "is to
confuse metaphor with reality." Pacific Gas & Electric Co.
v. Public Utilities Comm'n of California, 475 U. S.
, 475 U. S. 33
(1986) (REHNQUIST, J., dissenting).
The testimonial act demanded of petitioner in this case must be
analyzed under the same principles applicable to other forms of
compelled testimony. In Curcio v. United States,
354 U. S. 118
(1957), we reviewed a judgment holding a union custodian in
criminal contempt for failing to give oral testimony regarding the
location and possession of books and records he had been ordered to
had already established that a labor union
was as much a collective entity for Fifth Amendment purposes as a
corporation, and the Government argued in Curcio
custodian could not claim a personal privilege because he was
performing only a "representative duty" on behalf of the collective
entity to which he belonged. Brief for United States in Curcio
v. United States,
O.T. 1956, No. 260. p. 17. We rejected that
argument and reversed the judgment below. We stated:
"[F]orcing the custodian to testify orally as to the whereabouts
of nonproduced records requires him to disclose
Page 487 U. S. 126
the contents of his own mind. He might be compelled to convict
himself out of his own mouth. That is contrary to the spirit and
letter of the Fifth Amendment."
at 354 U. S.
We confront the same Fifth Amendment claim here. The majority is
able to distinguish Curcio
only by giving much apparent
weight to the words "out of his own mouth," reading Curcio
to stand for the proposition that the Constitution treats oral
testimony differently than it does other forms of assertion. There
is no basis in the text or history of the Fifth Amendment for such
a distinction. The Self-Incrimination Clause speaks of compelled
"testimony," and has always been understood to apply to testimony
in all its forms. Doe v. United States, post
487 U. S.
-210, n. 8 (Doe II
). Physical acts will
constitute testimony if they probe the state of mind, memory,
perception, or cognition of the witness. The Court should not
retreat from the plain implications of this rule and hold that such
testimony may be compelled, even when self-incriminating, simply
because it is not spoken.
The distinction established by Curcio
is not, of
course, between oral and other forms of testimony; rather, it is
between a subpoena which compels a person to "disclose the contents
of his own mind," through words or actions, and one which does not.
A custodian who is incriminated simply by the
contents of the documents he has physically transmitted has not
been compelled to disclose his memory or perception or cognition. A
custodian who is incriminated by the personal knowledge he
communicates in locating and selecting the document demanded in a
Government subpoena has been compelled to testify in the most
elemental, constitutional sense.
Recognition of the privilege here would also avoid adoption of
the majority's metaphysical progression, which, I respectfully
submit, is flawed. Beginning from ordinary principles
Page 487 U. S. 127
of agency, the majority proceeds to the conclusion that, when a
corporate employee, or an employee of a labor union or partnership,
complies with a subpoena for production of documents, his act is
necessarily and solely the act of the entity. That premise, of
course, is at odds with the principle under which oral testimony in
properly was deemed privileged.
Since the custodian in Curcio
had been asked to provide
testimony on the union's behalf, and not his own, the Government
argued, as it again argues here, that the attempted compulsion was
constitutionally permissible because Curcio was performing only a
representative duty. We held, however, that testimony of that sort
may not be divorced from the person who speaks it. The questions
the Government wished to ask would have required Curcio to disclose
his own knowledge, and as a matter of law, his responses could not
be alienated from him and attributed to the labor union. In similar
fashion, the act demanded of Braswell requires a personal
disclosure of individual knowledge, a fact which cannot be
dismissed by labeling him a mere agent.
The heart of the matter, as everyone knows, is that the
Government does not see Braswell as a mere agent at all; and the
majority's theory is difficult to square with what will often be
the Government's actual practice. The subpoena in this ease was not
directed to Worldwide Machinery Sales, Inc., or Worldwide
Purchasing, Inc. It was directed to "Randy Braswell, President[,]
Worldwide Machinery Sales, Inc.[,] Worldwide Purchasing, Inc.," and
informed him that "[y]ou are hereby commanded" to provide the
specified documents. App. 6. The Government explained at oral
argument that it often chooses to designate an individual
recipient, rather than the corporation generally, when it serves a
subpoena because "[we] want the right to make that individual
comply with the subpoena." Tr. of Oral Arg. 43. This is not the
language of agency. By issuing a subpoena which
Page 487 U. S. 128
the Government insists is "directed to petitioner personally,"
Brief for United States 6 (filed Aug. 14, 1987), it has forfeited
any claim that it is simply making a demand on a corporation that,
in turn, will have to find a physical agent to perform its duty.
What the Government seeks instead is the right to choose any
corporate agent as a target of its subpoena, and compel that
individual to disclose certain information by his own actions.
The majority gives the corporate agent fiction a weight it
simply cannot bear. In a peculiar attempt to mitigate the force of
its own holding, it impinges upon its own analysis by concluding
that, while the Government may compel a named individual to produce
records, in any later proceeding against the person, it cannot
divulge that he performed the act. But if that is so, it is because
the Fifth Amendment protects the person without regard to his
status as a corporate employee; and once this be admitted, the
necessary support for the majority's case has collapsed.
Perhaps the Court makes this concession out of some vague sense
of fairness, but the source of its authority to do so remains
unexplained. It cannot rest on the Fifth Amendment, for the
privilege against self-incrimination does not permit balancing the
convenience of the Government against the rights of a witness, and
the majority has, in any case, determined that the Fifth Amendment
is inapplicable. If Braswell, by his actions, reveals information
about his state of mind that is relevant to a jury in a criminal
proceeding, there are no grounds of which I am aware for declaring
the information inadmissible, unless it be the Fifth Amendment.
In Doe I,
we declined expressly to do what the Court
does today. Noting that there might well be testimonial assertions
attendant upon the production of documents, we rejected the
argument that compelled production necessarily carried with it a
grant of constructive immunity. We held that immunity may be
granted only by appropriate statutory proceedings. The Government
must make a formal request
Page 487 U. S. 129
for statutory use immunity under 18 U.S.C. §§ 6002, 6003 if it
seeks access to records in exchange for its agreement not to use
testimonial acts against the individual. 465 U.S. at 465 U. S.
-617. Rather than beginning the practice of
establishing new judicially created evidentiary rules, conferring
upon individuals some partial use immunity to avoid results the
Court finds constitutionally intolerable, I submit our precedents
require the Government to use the only mechanism yet sanctioned for
compelling testimony that is privileged: a request for immunity as
provided by statute.
The majority's abiding concern is that, if a corporate officer
who is the target of a subpoena is allowed to assert the privilege,
it will impede the Government's power to investigate corporations,
unions, and partnerships, to uncover and prosecute white-collar
crimes, and otherwise to enforce its visitatorial powers. There are
at least two answers to this. The first, and most fundamental, is
that the text of the Fifth Amendment does not authorize exceptions
premised on such rationales. Second, even if it were proper to
invent such exceptions, the dangers prophesied by the majority are
Recognition of the right to assert a privilege does not mean it
will exist in many cases. In many instances, the production of
documents may implicate no testimonial assertions at all. In
for example, we held that the specific acts
required by the subpoena before us "would not itself involve
testimonial self-incrimination" because, in that case,
"the existence and location of the papers [were] a foregone
conclusion, and the taxpayer adds little or nothing to the sum
total of the Government's information by conceding that he in fact
has the papers."
425 U.S. at 425 U. S. 411
Whether a particular act is testimonial and self-incriminating is
largely a factual issue to be decided in each case. Doe II,
p. 487 U. S. 201
the case before us, the Government has made its submission
Page 487 U. S. 130
on the assumption that the subpoena would result in
incriminating testimony. The existence of a privilege in future
cases, however, is not an automatic result.
Further, to the extent testimonial assertions are being
compelled, use immunity can be granted without impeding the
investigation. Where the privilege is applicable, immunity will be
needed for only one individual, and solely with respect to evidence
derived from the act of production itself. The Government would not
be denied access to the records it seeks, it would be free to use
the contents of the records against everyone, and it would be free
to use any testimonial act implicit in production against all but
the custodian it selects. In appropriate cases, the Government will
be able to establish authenticity, possession, and control by means
other than compelling assertions about them from a suspect.
In one sense, the case before us may not be a particularly
sympathetic one. Braswell was the sole stockholder of the
corporation, and ran it himself. Perhaps that is why the Court
suggests he waived his Fifth Amendment self-incrimination rights by
using the corporate form. One does not always, however, have the
choice of his or her employer, much less the choice of the business
enterprise through which the employer conducts its business. Though
the Court here hints at a waiver, nothing in Fifth Amendment
jurisprudence indicates that the acceptance of employment should be
deemed a waiver of a specific protection that is as basic a part of
our constitutional heritage as is the privilege against
The law is not captive to its own fictions. Yet, in the matter
before us, the Court employs the fiction that personal
incrimination of the employee is neither sought by the Government
nor cognizable by the law. That is a regrettable holding, for the
conclusion is factually unsound, unnecessary for legitimate
regulation, and a violation of the Self-Incrimination Clause of the
Fifth Amendment of the Constitution. For these reasons, I