Fisher v. United States 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976)
The IRS was looking for tax
cheats. They interviewed two taxpayers about their tax returns.
Afterwards, the taxpayers got
some documents about their returns from their accountants, and gave them
to their lawyers (Fisher and Kasmir respectively).
The IRS sent a summons to
Fisher and Kasmir requesting copies of the documents. They refused, on
the grounds that the information was covered by attorney-client
Fisher claimed that being
asked to produce the records would violate their clients' 5th
Amendment violation of the right
Everyone agreed that if the 5th
Amendment excused the taxpayers from
turning over the records, it would also excuse their lawyers and
accountants from doing so.
The Trial Court found for the
IRS and ordered that Fisher and Kasmir turn over the documents. They
The Appellate Court reversed.
The IRS appealed.
The Appellate Court found
that under the 5th Amendment, the documents would have been privileged if the summons had
been sent to the taxpayer, so, in light of the attorney-client
relationship, the taxpayer retained such privilege after transferring the
documents to his attorney.
It's not the attorney who
invokes the 5th Amendment (since that only covers self incrimination), but attorney-client
privilege allows the client to bar a lawyer from disclosing documents on
5th Amendment grounds if
the client's disclosure of them would be barred under the 5th
The US Supreme Court reversed
and ordered the documents turned over to the IRS
The US Supreme Court found
that there was no violation of the 5th Amendment, even if the taxpayers had retained possession.
The taxpayers were not
being compelled to be witnesses against themselves. They were not being
asked to give testimony at all.
The Court noted that there
may have had a reasonable expectation of privacy with respect to the
documents, but the 5th Amendment does not protect private information
obtained without compelling self-incriminating testimony.
privilege under the 5th Amendment is not violated by enforcement of the
summonses involved in these cases because enforcement against a
taxpayer's lawyer would not 'compel' the taxpayer to do anything, and
certainly would not compel him to be a witness against himself."
The Court found that
production of the documents involved no incriminating testimony, and
therefore the documents in the hands of the taxpayers' attorneys were not
immune from production.
The Court found that the
fact that the taxpayer technically has to implicitly admit the existence
and possession of the papers does not rise to the level of testimony
within the bounds of 5th Amendment protections.
Basically, this case said that
the 5th Amendment does
not independently proscribe the compelled production of every sort of
incriminating evidence, but applies only when the accused is compelled to
make a testimonial communication that is incriminating.
"We adhere to the view
that the 5th Amendment
protects against 'compelled self-incrimination, not the disclosure of
The defendant was never compelled to write down the incriminating information.
It was written voluntarily. You might be compelled to produce it, but
the contents of the document were not compelled.
Since there was no
compulsion, the reliability of the evidence is not in question, like it
would be with compelled testimony.