United States v. Hubbell 530 U.S. 27, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000)
An independent counsel
investigated Hubbell and found evidence of criminal activity related to a
shady land deal.
Hubbell pled guilty and agreed
to cooperate in an investigation.
The plea deal specified that
Hubbell was to provide the independent counsel with "full, complete,
accurate, and truthful information" about all matters related to the
The independent counsel asked
Hubbell to produce a wide variety of documents related to the land deal.
The independent counsel put
Hubbell on the stand and asked him about the documents. Hubbell asserted
his 5th Amendmentprivilege
against self-incrimination, and refused "to state whether
there are documents within my possession, custody, or control responsive
to the Subpoena."
The independent counsel then
offered Hubbell immunity "to the extent allowed by law," and
demanded that he produce the documents.
Hubbell then produced 13,000
pages of documents.
Based on the contents of the documents,
the independent counsel charged Hubbell with further crimes.
Hubbell argued that since he
had been granted immunity, he could not be prosecuted for crimes related
to information found in the documents.
The Trial Court dismissed the
case because of the grant of immunity. The independent counsel appealed.
The independent counsel
argued that because the government's possession of the documents was the
fruit only of the simple physical act of Hubbell's production of those
documents, Hubbell's immunity should not prevent the prosecutor from
making derivative use of the documents, even though Hubbell's production
of those documents was the result of Hubbell's compliance with the court
order granting him immunity.
The Appellate Court reversed
and remanded. Hubbell appealed.
The Appellate Court found
that it all depended on how much information the independent counsel had
about the documents. While they could not conduct 'fishing expeditions',
if they could show that they a general idea of what documents they were
looking for, Hubbell would have to produce them.
The US Supreme Court reversed
and found for Hubbell.
The US Supreme Court found
that the 5th Amendmentprivilege against self-incrimination protects a witness
from being compelled to disclose the existence of incriminating documents
that the government is unable to describe with reasonable particularity.
The Court found that if the
witness produces such documents, pursuant to a grant of immunity, the
government may not use them to prepare criminal charges against him.
The Act of Production
Doctrine says that the act of a
witness in producing documents or materials may have a testimonial aspect
for purposes of the 5th Amendmentprivilege
against self-incrimination to the
extent that the act of production provides information about the
existence, custody, or authenticity of the documents or materials
The prosecutor can't just
order someone to "turn over all your incriminating documents."
They have to be specific. Otherwise they would be compelling the defendant to acknowledge facts about the
documents (existence, custody, authenticity), and those facts could be
incriminating (outside of the contents of the documents themselves).
If you tell a bookie to
produce his ledger of all the bets he has made, that is pretty much
asking him to admit that he's been taking bets.