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 privilege.
    • Fisher claimed that being asked to produce the records would violate their clients’ 5th Amendment violation of the right against self-incrimination.
    • 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 appealed.
  • 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 Amendment.
  • 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.
      • “The taxpayer’s 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 private information.’”
      • 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.