Compulsion 'to Be a Witness' and the Resurrection of Boyd

This articles takes a fresh look at the Self-Incrimination Clause of the Fifth Amendment. I argue that, for more than a century, the Supreme Court has misunderstood what it means "to be a witness" within the parlance of the Clause. In 1886, the Supreme Court in Boyd v. United States held that the Self-Incrimination Clause, among other constitutional provisions, bars the government from compelling persons suspected of crime to turn over self-incriminatory documents. In the century since Boyd, the Court has beaten a steady retreat from this position, even as the Court has extended dramatically the reach of the Fifth Amendment with regard to self-incriminatory statements. In the wake of the Court's 1976 decision in Fisher v. United States, observers accurately have described Boyd as dead. Under the reasoning of Fisher, the Fifth Amendment generally does not bar the government from compelling a person to produce documents that are self-incriminatory in content. Only when the person's act of production itself reveals new information to the government beyond the contents of the documents themselves does the Fifth Amendment apply. The wisdom of this approach has formed the focus of ongoing debate in the secondary literature and, just last year, served as the subject of heated appellate debate in connection with Independent Counsel Kenneth Starr's prosecution of Webster Hubbell. Contrary to the view of the modern Court and the substantial weight of academic commentary, I argue that the text of the Fifth Amendment, the historical context of its adoption, and the Court's own analytical framework for self-incriminatory oral statements together form a convincing case to resurrect the holding of Boyd. The phrase "to be a witness" does not merely encompass the providing of evidence that itself is brought into being under government compulsion in a manner akin to witness testimony at trial. Properly understood, the phrase "to be a witness" should be read as synonymous with the phrase "to give evidence" proposed by state ratifying conventions upon consideration of the original Constitution. My focus is not exclusively textual or historical, however. Rather, in doctrinal terms, my reading serves to clarify the relationship between the Fifth Amendment and the other major constitutional provision that governs the gathering of information by the government in the criminal process: namely, the Fourth Amendment. The crucial dividing line is not, as the modern Court would have it, between those acts of production that give the government additional incriminatory information beyond the contents of the materials produced and those acts of production that do not. Rather, the fundamental distinction is between the compelled giving of self-incriminatory evidence to the government (categorically barred by the Fifth Amendment) and the unilateral taking of evidence by the government (regulated by the Fourth). The article goes on to demonstrate how such a reading explains several controversial aspects of Fifth Amendment jurisprudence, including the use immunity doctrine and the ban on prosecutorial comment upon a criminal defendant's invocation of that Amendment to support a refusal to testify at trial.