Doe v. United States, 487 U.S. 201 (1988)

Doe v. United States

No. 86-1753

Argued March 2, 1988
Decided June 22, 1988
487 U.S. 201

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

Syllabus

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. 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. 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 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. 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,219.