United States v. Hubbell - Opinion Announcement

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 99-166, United States against Hubbell will be announced by Justice Stevens.

Argument of Justice Stevens

Mr. Stevens: This case comes to us on from the United States Court of Appeals for the District of Columbia.

It presents a question whether the Fifth Amendment privilege against compelled self-incrimination prohibits the government from using incriminating documents produced under a grant of immunity to prepare charges against the immunized party.

Because the government has not shown that its evidence against respondent Hubbell was derived from sources wholly independent of the testimonial aspect of his immunized conduct in assembling and producing the subpoenaed documents.

We hold that the indictment against him must be dismissed.

The indictment at issue is the second prosecution of Hubbell by the independent counsel appointed in August 1994 to investigate possible violations of federal law relating to the Whitewater Development Corporation.

The foundation for this prosecution was the subpoena requiring Hubbell to produce all documents in his control that fit any of several broad descriptions.

After invoking his Fifth Amendment privilege in receiving a grant of immunity coextensive with the scope of that privilege, Hubbell produced the documents.

The independent counsel made substantial use of those documents in the investigation leading to the indictment.

The District Court granted Hubbell's motion to dismiss the indictment holding that the government use of the subpoenaed documents violated his grant of immunity, because all of the evidence against him was derived either directly or indirectly from the testimonial aspects of his immunized act of producing the documents.

The Court of Appeals vacated and remanded directing the District Court to permit the prosecution to proceed if the independent counsel could establish prior knowledge that the incriminating documents existed and were in Hubbell's possession.

Acknowledging that he could not meet their standard, the counsel filed a petition for writ of certiorari which we granted.

Our analysis of the issues presented begins with the summary of our prior cases interpreting the Fifth Amendment privilege and the equivalent protection provided by a grant of statutory use and derivative use immunity.

A particular relevance in this case is our recognition that the act of producing documents in response to a subpoena may have an implicit testimonial aspect that is protected by the privilege, even though the contents of the documents produced are not protected.

Applying these principles to this case, we conclude that Hubbell's act of producing the subpoenaed documents did have a testimonial aspect and that the government made derivative use of it in obtaining the indictment against him and preparing the case for a trial.

Clearly the mental and physical steps that subpoena compelled Hubbell to take in order to provide the government with an accurate inventory of the many sources of requested evidence, provided a link in the chain of evidence needed to prosecute it.

In light of counsel's failure to show that his evidence against Hubbell was derived from sources wholly independent of these steps, the immunity granted to Hubbell shields him from prosecution.

The judgment of the Court of Appeals for the District of Columbia is affirmed.

Justice Thomas has filed a concurring opinion in which Justice Scalia has joined; the Chief Justice has filed a dissenting statement.