John Paul Stevens

“ Compelled testimony that communicates information that may “lead to incriminating evidence” is privileged even if the information itself is not inculpatory. Doe v. United States, 487 U.S. 201, 208, n. 6 (1988) . It is the Fifth Amendment’s protection against the prosecutor’s use of incriminating information derived directly or indirectly from the compelled testimony of the respondent that is of primary relevance in this case. ”

“ It has, however, long been settled that its protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not introduced into evidence. Thus, a half-century ago we held that a trial judge had erroneously rejected a defendant’s claim of privilege on the ground that his answer to the pending question would not itself constitute evidence of the charged offense. ”

“ The Government cannot cure this deficiency through the overbroad argument that a businessman such as respondent will always possess general business and tax records that fall within the broad categories described in this subpoena. The Doe subpoenas also sought several broad categories of general business records, yet we upheld the District Court’s finding that the act of producing those records would involve testimonial self-incrimination. ”

“ III Acting pursuant to 18 U.S.C. § 6002 the District Court entered an order compelling respondent to produce “any and all documents” described in the grand jury subpoena and granting him “immunity to the extent allowed by law.” App. 60—61. In Kastigar v. United States, 406 U.S. 441 (1972) , we upheld the constitutionality of §6002 because the scope of the “use and derivative-use” immunity that it provides is coextensive with the scope of the constitutional privilege against self-incrimination. ”

“ In October 1996, while respondent was incarcerated, the Independent Counsel served him with a subpoena duces tecum calling for the production of 11 categories of documents before a grand jury sitting in Little Rock, Arkansas. See Appendix, infra. On November 19, he appeared before the grand jury and invoked his Fifth Amendment privilege against self-incrimination. In response to questioning by the prosecutor, respondent initially refused “to state whether there are documents within my possession, custody, or control responsive to the Subpoena.” App. 62. ”

“ B. Any and all documents reflecting, referring, or relating to any direct or indirect sources of money of other things of value received by or provided to Webster Hubbell, his wife, or children from January 1, 1993 to the present, including but not limited to billing memoranda, draft statements, bills, final statements, and/or bills for work performed or time billed from January 1, 1993 to the present. ”

“ Only then is a person compelled to be a ‘witness’ against himself.” Doe v. United States, 487 U.S., at 209—210 (footnote omitted) .
↑ . See App. 62—70. Thus, for example, after respondent had been duly sworn by the grand jury foreman, the prosecutor called his attention to paragraph A of the Subpoena Rider (reproduced in the Appendix, infra, at 19) and asked whether he had produced “all those documents.” App. 65. ”

“ See Stuntz, Self-incrimination and Excuse, 88 Colum. L. Rev. 1227, 1228—1229, 1256—1259, 1277—1279 (1988) (discussing the conceptual link between truth-telling and the privilege in the document production context) ; Alito, Documents and the Privilege Against Self-Incrimination, 48 U. Pitt. L. Rev. 27, 47 (1986) ; 8 J. Wigmore, Evidence §2264, p. 379 (J. McNaughton rev. 1961) (describing a subpoena duces tecum as “process relying on [the witness’] moral responsibility for truthtelling”) . ”