1307
AMENDMENT 5—RIGHTS OF PERSONS
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Schmerber v. California, 384 U.S. 757, 764 (1966); United States v. Wade,
388 U.S. 218, 221–23 (1967); Holt v. United States, 218 U.S. 245, 252 (1910). In
California v. Byers, 402 U.S. 424 (1971), four Justices believed that requiring any
person involved in a traffic accident to stop and give his name and address did not
involve testimonial compulsion and therefore the privilege was inapplicable, id. at
431–34 (Chief Justice Burger and Justices Stewart, White, and Blackmun), but Jus-
tice Harlan, id. at 434 (concurring), and Justices Black, Douglas, Brennan, and Mar-
shall, id. at 459, 464 (dissenting), disagreed. In South Dakota v. Neville, 459 U.S.
553 (1983), the Court indicated as well that a State may compel a motorist sus-
pected of drunk driving to submit to a blood alcohol test, and may also give the sus-
pect a choice about whether to submit, but use his refusal to submit to the test as
evidence against him. The Court rested its evidentiary ruling on absence of coercion,
preferring not to apply the sometimes difficult distinction between testimonial and
physical evidence. In another case, involving roadside videotaping of a drunk driving
suspect, the Court found that the slurred nature of the suspect’s speech, as well as
his answers to routine booking questions as to name, address, weight, height, eye
color, date of birth, and current age, were not testimonial in nature. Pennsylvania
v. Muniz, 496 U.S. 582 (1990). On the other hand, the suspect’s answer to a request
to identify the date of his sixth birthday was considered testimonial. Id.
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Fisher v. United States, 425 U.S. 391 (1976), however, holds that compelling
a taxpayer by subpoena to produce documents produced by his accountants from his
own papers does not involve testimonial self-incrimination and is not barred by the
privilege. ‘‘[T]he Fifth 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.’’ Id. at 408
(emphasis by Court). Even if the documents contained the writing of the person
being compelled to produce them, that would be insufficient to trigger the privilege,
unless the government had compelled him to write in the first place. Id. at 410 n.11.
Only if by complying with the subpoena the person would be making a communica-
tion that was both ‘‘testimonial’’ and ‘‘incriminating,’’ such as by conceding the exist-
ence of the papers or indicating that these are the papers sought, would he have
a valid claim of privilege, and even there one would have to evaluate the facts and
circumstances of the particular case to reach a determination. Id. at 410. Even fur-
ther removed from the protection of the privilege is seizure pursuant to a search
warrant of business records in the handwriting of the defendant. Andresen v. Mary-
land, 427 U.S. 463 (1976). A court order compelling a target of a grand jury inves-
tigation to sign a consent directive authorizing foreign banks to disclose records of
any and all accounts over which he had a right of withdrawal is not testimonial in
nature, since the factual assertions are required of the banks and not of the target.
Doe v. United States, 487 U.S. 201 (1988). But in United States v. Doe, 465 U.S.
605 (1984), the Court distinguished Fisher, upholding lower courts’ findings that the
act of producing tax records implicates the privilege because it would compel admis-
sion that the records exist, that they were in the taxpayer’s possession, and that
they are authentic. Similarly, a juvenile court’s order to produce a child implicates
the privilege, because the act of compliance ‘‘would amount to testimony regarding
[the subject’s] control over and possession of [the child].’’ Baltimore Dep’t of Social
Services v. Bouknight, 493 U.S. 549, 555 (1990).
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E.g., Marchetti v. United States, 390 U.S. 39 (1968) (criminal penalties at-
tached to failure to register and make incriminating admissions); Malloy v. Hogan,
ing of the clause,
180
although compelling him to produce private
papers may.
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The protection is against ‘‘compulsory’’ incrimination, and tra-
ditionally the Court has treated within the clause only those com-
pulsions which arise from legally enforceable obligations, culminat-
ing in imprisonment for refusal to testify or to produce docu-
ments.
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But the compulsion need not be imprisonment; it can as