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 land deal.
  • The independent counsel asked Hubbell to produce a wide variety of documents related to the land deal. Hubbell refused.
  • The independent counsel put Hubbell on the stand and asked him about the documents. Hubbell asserted his 5th Amendment privilege 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 Amendment privilege 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 Amendment privilege against self-incrimination to the extent that the act of production provides information about the existence, custody, or authenticity of the documents or materials produced.
    • 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.