United States v. Hubbell

Background

A lawyer named Webster Hubbell, who had pleaded guilty in an earlier case and agreed to help an Independent Counsel probing Whitewater, was later served with a very broad grand jury subpoena. After invoking his Fifth Amendment right, a court order under the immunity statutes compelled him to produce documents and answer questions; he turned over 13,120 pages. The contents and the fact of production led to a separate criminal indictment in Washington, D.C., and the district court dismissed the indictment as tainted by the immunized act of producing documents.

Reasoning

The Court addressed two questions: whether producing documents can be testimonial, and whether the immunity in §6002 bars government use or derivative use of that compelled production. The opinion explains that the act of producing papers can implicitly communicate that documents exist, are in the person’s control, and are authentic. Under Kastigar, the Government must prove that any evidence it uses is derived from wholly independent, legitimate sources. Because the Government could not show that the indictment and its investigatory leads came from such independent sources rather than from Hubbell’s immunized act of production, the prosecution was barred.

Real world impact

The decision protects people who are subpoenaed from having their compelled act of producing documents used as a springboard for prosecution unless prosecutors can identify independent sources. It does not make the ordinary contents of voluntarily prepared documents privileged; instead, it limits use of the testimonial act of identifying and assembling those documents.

Dissents or concurrances

Justice Thomas, joined by Justice Scalia, concurred but urged reconsideration of whether the Fifth Amendment originally protected all compelled evidence; Chief Justice Rehnquist dissented in part.