JOHN DOE, PETITIONER V. UNITED STATES OF AMERICA No. 86-1753 In the Supreme Court of the United States October Term, 1987 On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit Brief for the United States TABLE OF CONTENTS Question Presented Opinion below Jurisdiction Constitutional provision involved Statement Summary of argument Argument: The Fifth Amendment is not violated when a person is compelled to consent to the disclosure of bank records held by a third party A. The Fifth Amendment comes into play only when the government compels a person to make an incriminating testimonial assertion B. The compelled consent form at issue here is not testimonial and has no evidentiary value Conclusion OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-4a) is unreported. A prior opinion of the court of appeals in this case (Pet. App. 5a-7a) is also unreported. JURISDICTION The judgment of the court of appeals was entered on February 13, 1987. The petition for a writ of certiorari was filed on May 1, 1987, and was granted on October 5, 1987. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). CONSTITUTIONAL PROVISION INVOLVED The Fifth Amendment to the Constitution provides, in relevant part: No person * * * shall be compelled in any criminal case to be a witness against himself * * * . QUESTION PRESENTED Whether a court order requiring petitioner to consent to the disclosure of certain foreign bank records violates the Fifth Amendment privilege against compulsory self-incrimination. STATEMENT Petitioner is the subject of an investigation being conducted by a grand jury sitting in the Southern District of Texas. On November 16, 1983, petitioner appeared before the grand jury pursuant to a subpoena that directed him to produce records of transactions in accounts at three banks in the Cayman Islands and Bermuda. Petitioner produced some of the requested records and testified that he neither possessed nor controlled the other documents sought by the grand jury. When questioned about the existence or location of additional records, however, petitioner asserted his Fifth Amendment privilege against compulsory self-incrimination. Pet. App. 17a. /1/ The laws of Bermuda and the Cayman Islands prohibit the disclosure of bank records without the bank customer's consent. Therefore, on July 2, 1984, the government moved the district court to order petitioner to consent to the disclosure of records relating to any accounts that he held or controlled at the three foreign banks. The government subsequently submitted proposed consent forms for each of 12 foreign bank accounts; the consent forms provided account numbers for each of those accounts and described the documents that the government wished the banks to produce. See Supp. Materials to Motion and Memorandum to Compel Doe to Consent to Disclosure of Records. The district court denied the motion (Pet. App. 16a-28a). The court reasoned that petitioner's consent to disclosure would amount to an admission both that the bank records existed and that petitioner "exercised signatory authority over such accounts" (id. at 19a-20a (footnote omitted)). The court therefore held that compelling petitioner's consent to release of the records would violate his Fifth Amendment privilege against compulsory self-incrimination (id. at 20a-21a). The government sought reconsideration of the district court's order. Along with its motion, the government submitted a proposed consent form for petitioner to sign that was substantially the same as the form approved in United States v. Ghidoni, 732 F.2d 814 (11th Cir.), cert. denied, 469 U.S. 932 (1984). By signing that form, petitioner would "direct any bank or trust company at which (he) may have a bank account of any kind * * * to disclose all information and deliver copies of all documents of every nature in (the bank's) possession or control which relate to said bank account to Grand Jury 84-2." The form also stated that "(t)his direction has been executed pursuant to * * * order of the United States District Court for the Southern District of Texas." Pet. App. 12a n.5. /2/ The district court declined to follow Ghidoni and again denied the government's motion. The court stated that "execution of the consent form would be a compelled testimonial communication" (id. at 14a) that might provide the "necessary link" connecting petitioner to certain accounts (id. at 13a). Relying on its intervening decision in In re United States Grand Jury Proceedings (Cid), 767 F.2d 1131 (1985), the court of appeals reversed (Pet. App. 5a-7a). The court of appeals explained that the execution of a consent form such as the one at issue in this case does "not have testimonial significance" (id. at 7a), so that an order compelling execution of the form does not implicate the Fifth Amendment. On remand, the district court ordered petitioner to appear before the grand jury and to execute the consent forms. Petitioner appeared, but he refused to sign the forms. The court accordingly held petitioner in contempt and ordered him confined until he consented to the disclosure of the bank records. Pet. App. 2a. The district court stayed imposition of the sanction to give petitioner an opportunity to appeal (id. at 2a-3a). The court of appeals affirmed the contempt sanction; it rejected petitioner's Fifth Amendment argument based on its prior decision in the case (id. at 3a-4a). SUMMARY OF ARGUMENT 1. This Court has made it clear that the Self-Incrimination Clause may be asserted only to prevent the compulsion of incriminating "testimonial communications" -- in other words, only when the government seeks to compel the accused to make an assertion, explicit or implicit, that will further the government's investigation. That principle underlies the Court's holdings that suspects may be required to furnish blood samples or handwriting and voice exemplars, or may be directed to stand in a lineup or wear particular clothing; suspects who are compelled to make such statements or take such actions have not done anything "sufficiently testimonial for purposes of the privilege." Fisher v. United States, 425 U.S. 391, 411 (1976). The Court reaffirmed that principle in its more recent decisions holding that suspects may assert their privilege in resisting requests for business records if -- but only if -- the act of producing the records would have both testimonial aspects and an incriminating effect. An act or statement is not "testimonial" merely because it may be useful as evidence or may be used to obtain evidence from a third party. The Court's decisions affirming the constitutionality of compelled blood samples and handwriting exemplars stand squarely for the proposition that a defendant may be required to submit to or engage in conduct that facilitates the government's discovery of evidence. Those cases hold that a suspect may be directed to provide (or even manufacture) incriminating evidence, as long as he is not compelled to make a testimonial statement. And compelling a suspect to engage in conduct that facilitates the production of evidence by a third party, as in this case, is less incriminating (and certainly no more testimonial) than requiring him to produce the evidence himself. 2. The compelled consent at issue in this case is not a testimonial statement. The consent form does not communicate facts; rather, it is a verbal act that directs the recipient banks to do something. The form is sought only for its legal effect, not for the truth of any assertion contained within it. Moreover, by signing the form, petitioner makes no statement, either explicit or implicit, about the existence of foreign accounts or about his control over any such accounts. The form simply indicates that petitioner will not object to the release of any records that may exist. As a result, if the government obtains bank records after petitioner signs the form, the only factual statement made by anyone will be the bank's implicit declaration that it believes the accounts to be petitioner's. Petitioner's signature on the form thus serves only to remove a non-constitutional impediment imposed by foreign law on the delivery of bank records. Signing the form is an act that may ultimately result in the production of evidence against petitioner, but it is not a testimonial communication, and it is therefore not protected by the Fifth Amendment. ARGUMENT THE FIFTH AMENDMENT IS NOT VIOLATED WHEN A PERSON IS COMPELLED TO CONSENT TO THE DISCLOSURE OF BANK RECORDS HELD BY A THIRD PARTY It is common ground between the parties in this case that the business records sought by the government are not themselves protected by the Fifth Amendment. As this Court has stated, "a person inculpated by materials sought by a subpoena issued to a third party cannot seek shelter in the Self-Incrimination Clause of the Fifth Amendment." SEC v. Jerry T. O'Brien, Inc., 467 U.S. 735, 742-743 (1984). See Couch v. United States, 409 U.S. 322, 328-329 (1973). The Court has made it clear, in particular, that the Fifth Amendment does not come into play when a bank is directed to provide records of customer accounts to the government. See generally California Bankers Ass'n v. Shultz, 416 U.S. 21, 55 (1974); cf. United States v. Miller, 425 U.S. 435, 442-443 (1976). And foreign bank secrecy laws provide no privacy rights for United States citizens that are not otherwise present under the Constitution and laws of the United States. United States v. Payner, 447 U.S. 727, 732 n.4 (1980). /3/ The only question in this case, then, is whether requiring petitioner to place his signature on a form consenting to the release of bank records that may be held by foreign banks is inconsistent with the Fifth Amendment. As this Court's decisions make clear, the court of appeals answered that question correctly. A. The Fifth Amendment Comes Into Play Only When the Government Compels a Person to Make an Incriminating Testimonial Assertion 1. The Fifth Amendment does not erect a general bar against government efforts to obtain information from a suspect in a criminal case. Rather, in order to fall within the privilege against compulsory self-incrimination, a disclosure must be (1) compelled, (2) incriminating, and (3) testimonial. See United States v. Doe, 465 U.S. 605, 612 (1984); Fisher v. United States, 425 U.S. 391, 408 (1976). There is no question that the execution of the consent form at issue in this case would be compelled: the district court ordered petitioner to execute the form over his objection. It can likewise be assumed that the execution of the consent form will assist the government in obtaining incriminating information; certainly, its purpose is to help the government obtain evidence that will be useful in a criminal investigation of petitioner. Thus, the question on which this case turns is whether the act of executing the consent form is testimonial in nature. Testimonial communications are statements that relate a factual assertion, either explicitly or implicitly, and in that way "rely( ) on the 'truthtelling' of the (suspect)" (Fisher, 425 U.S. at 411 (citation omitted)). As the Court has explained, it is this "extortion of information from the accused" (Couch v. United States, 409 U.S. 322, 328 (1973)), and the concomitant attempt to force him "to disclosre the contents of his own mind" (Curcio v. United States, 354 U.S. 118, 128 (1957)), that implicate the Self-Incrimination Clause. If petitioner's signature on the consent form does not constitute an assertion which the government may use to further its investigation, compelling him to place his signature on the form will not, in the language of the Fifth Amendment, make him "a witness against himself." The principle that the Fifth Amendment privilege may be asserted only when a person is being asked to disclose knowledge that could incriminate him -- when he is in some sense asked to be a "witness" -- has been expressed repeatedly by the Court. It underlies the Court's decisions that suspects may be compelled to furnish blood samples (see Schmerber v. California, 384 U.S. 757 (1966)) or handwriting and voice exemplars (see United States v. Dionisio, 410 U.S. 1 (1973); Gilbert v. California, 388 U.S. 263 (1967), or may be directed to stand in a lineup or wear particular clothing (see United States v. Wade, 388 U.S. 218 (1967); see also Holt v. United States, 218 U.S. 245 (1910)). Those decisions were grounded on the proposition that "the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature" (Schmerber, 384 U.S. at 761 (footnote omitted)). The privilege accordingly was held not to come into play in those cases, because the suspects were not required "to disclosre any knowledge (they) might have" (Wade, 388 U.S. at 222). See Dionisio, 410 U.S. at 7; Gilbert, 388 U.S. at 266-267. As the Court has explained more recently, a suspect who is compelled to furnish a handwriting sample may well incriminate himself, but "his Fifth Amendment privilege is not violated because nothing he has said or done is deemed to be sufficiently testimonial for purposes of the privilege." Fisher, 425 U.S. at 411; see id. at 432 (Marshall, J., concurring in the judgment). The Court confirmed this approach to the interests protected by the privilege in Fisher v. United States, supra, and United States v. Doe, supra. In those cases, the Court held that a suspect may assert the Fifth Amendment in resisting a subpoena or summons seeking business records, but only if the act of producing the records would have both "testimonial aspects and an incriminating effect" (Doe, 465 U.S. at 612). This emphasis on "testimonial self-incrimination" (id. at 613; see Fisher, 425 U.S. at 409) is hardly a special rule for nonverbal communications, as petitioner suggests (Br. 18-19). To the contrary, the decisions in Fisher and Doe rested on the understanding that "'the Court has never on any ground, personal privacy included, applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence which, in the Court's view, did not involve compelled testimonial self-incrimination of some sort.'" Doe, 465 U.S. at 611 n.8 (quoting Fisher, 425 U.S. at 399 (emphasis added)). Citing the Schmerber line of cases, the Court thus squarely held in Fisher that the Fifth Amendment comes into play "only when the accused is compelled to make a testimonial communication that is incriminating" (425 U.S. at 408 (emphasis in original); see id. at 409; Doe, 465 U.S. at 611, 613). It is entirely consistent with the policies underlying the Self-Incrimination Clause to hold that the privilege may be asserted only to resist compelled testimonial disclosures of information. The Court has repeatedly explained that "(t)he 'historic function' of the privilege has been to protect a '"natural individual from compulsory incrimination through his own testimony or personal records."'" Andresen v. Maryland, 427 U.S. 463, 470-471 (1976) (citations omitted); see also 8 J. Wigmore, Evidence Section 2283, at 378-379 (McNaughton rev. ed. 1961). That purpose is fulfilled when the Fifth Amendment prevents the government from compelling the accused to acknowledge his guilt or otherwise to reveal his knowledge about the offense; the Self-Incrimination Clause in that way reflects "'a judgment * * * that the prosecution should (not) be free to build up a criminal case, in whole or in part, with the assistance of enforced disclosures by the accused.'" Ullmann v. United States, 350 U.S. 422, 427 (1956) (citation omitted). See Couch, 409 U.S. at 327; Bellis v. United States, 417 U.S. 85, 88 (1974). Similarly, the subsidiary policies that underlie the central historic function served by the Self-Incrimination Clause -- protection of the accused from "the cruel trilemma of self-accusation, perjury or contempt," insistence that the government shoulder the burden of proving its case, distrust of self-deprecatory statements, and the like (see Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 (1964)) /4/ -- are most directly served when the privilege is asserted to spare the accused from having to reveal his knowledge of the offense or from having to share his thoughts with the government. In arguing that the Self-Incrimination Clause is not limited to preventing the compelled production of incriminating assertions, petitioner cites (Br. 10) a portion of this Court's opinion in Murphy that suggests that the privilege reflects "our preference for an accusatorial rather than an inquisitorial system of criminal justice; (and) * * * our sense of fair play which dictates a fair state-individual balance." But that snippet from Murphy does not establish the broad proposition for which petitioner cites it. Schmerber and its progeny make clear that it is not inconsistent with our accusatorial system of justice to compel the accused to take steps that advance the government's investigation, as long as he is not required to disclose incriminating information within his possession. The decisions in those cases recognize that confining the privilege to testimonial disclosures leaves the burden on the government to discover its evidence from a source other than the accused, and thus to "'shoulder the entire load'" of establishing guilt (Murphy, 378 U.S. at 55 (citation omitted)). Such a system is both non-inquisatorial and even-handed; if the government is required to prove its case without testimony from the accused, he has not been not made "a witness against himself." See generally Andresen, 427 U.S. at 477. /5/ 2. Petitioner contends that "the consent directive (at issue here) would be testimonial self-incrimination, regardless of its evidentiary significance, because the government could use it to obtain relevant evidence" (Br. 15). But the contention that an act or statement may be "testimonial" even though it lacks any factual content is a strange one, and it does not accord with this Court's use of the term. In fact, the Court has never held that a compelled action or statement that is not itself testimonial -- that is, that does not itself either explicitly or implicitly disclose information -- may be shielded by the Fifth Amendment privilege simply because it assists the government in obtaining evidence. See Schmerber, 384 U.S. at 764 (citation omitted) (while "the privilege is a bar against compelling 'communications' or 'testimony,' a compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it"). When a suspect is required to don clothing worn by the perpetrator of a crime, for example, his compelled conduct certainly helps the government obtain evidence from eyewitnesses. Similarly, other forms of "compelled evidence, such as handwriting examples, fingerprints, and blood samples, lead( ) to the development of highly incriminating testimony, but compulsion of such evidence does not violate the privilege." In re Grand Jury Subpoena, 826 F.2d 1166, 1172 n.2 (2d Cir. 1987) (Newman, J., concurring), petition for cert. pending, No. 87-517. And if the compelled conduct or statement is not itself testimonial, "it cannot become so because it will lead to incriminating evidence" (ibid.). Petitioner nevertheless complains that the compelled consent form might "cause the bank (that receives it) to provide incriminating documents and testimony" (Br. 16). But compelling a suspect to make a statement that facilitates the production of evidence by someone else obviously is less incriminating (and certainly is no more testimonial) than requiring him to produce the evidence himself -- a requirement that the Court has repeatedly held may be imposed upon a suspect. And petitioner offers absolutely no rationale to support his assertion that a nontestimonial verbal statement directed to a third party is transformed into something that is protected by the Fifth Amendment when it assists the government's case, while the suspect's own nontestimonial act is not. /6/ Petitioner also cites two of this Court's decisions, Kastigar v. United States, 406 U.S. 441 (1972), and Estelle v. Smith, 451 U.S. 454 (1981), for the proposition that "the government may not compel a witness to make a statement that will allow it to obtain evidence" (Br. 13). In fact, however, those decisions confirm that the Fifth Amendment shields only statements that are testimonial in character, i.e., statements that convey information. Kastigar affirmed the constitutionality of 18 U.S.C. 6002 and 6003, which permit the government to compel testimony as long as the witness is immunized against use of the "testimony or other information" provided. In holding that the immunity provided by Sections 6002 and 6003 is coextensive with the Fifth Amendment, the Court necessarily concluded that the privilege protects only against "compelled testimony." 406 U.S. at 453-454. Indeed, a central precept of the decision in Kastigar was that the privilege "protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used" (id. at 445 (emphasis added; footnote omitted)). /7/ Petitioner is also incorrect in citing Estelle for the proposition that "a statement without inherent evidentiary value is testimonial for Fifth Amendment purposes if it can be used to obtain evidence" (Br. 14). Estelle involved the use at the defendant's trial of statements improperly elicited from the defendant by a state psychiatrist. Holding that the State may not use compelled testimony to subject a defendant to a criminal penalty (see 451 U.S. at 462), the Court concluded that the defendant's Fifth Amendment privilege had been violated "because the State used as evidence against (the defendant) the substance of his disclosures during the pretrial psychiatric examination" (id. at 464-465 (emphasis added)). The Court found a Fifth Amendment violation in Estelle not because the defendant's acts or nontestimonial statements were used to obtain evidence against him, but because the statements that were compelled were themselves testimonial and incriminating: they constituted disclosures of facts by the defendant that were offered by the State as "affirmative evidence" to be considered in setting his punishment (id. at 466). B. The Compelled Consent Form at Issue Here is not Testimonial and has no Evidentiary Value 1. Throughout his brief, petitioner refers to the consent form as a "communication" (see, e.g., Br. 9, 11). His theory is that the "content" of the form will be "communicated" to foreign banks that will, in turn, provide the government with evidence (Br. 8-9, 26). But this use of the word "communication" is misleading. The consent form does not communicate facts at all; it directs the recipient banks to do something. The form is sought only for its legal effect. Because it indicates on its face that it was signed pursuant to a court order (see Pet. App. 12a n.5), the form sheds no light on petitioner's actual intent or state of mind. As Judge Breyer explained of a virtually identical consent form, the signator "does not 'assert' consent (nor does he 'admit' consent or 'assure' consent); rather, he performs a verbal act: he grants consent." In re Grand Jury Proceedings (Ranauro), 814 F.2d 791, 798 (1st Cir. 1987) (emphasis in original) (Breyer, J., dissenting). /8/ Indeed, whether or not the form can be characterized as a "communication" to the banks ultimately is beside the point: the Self-Incrimination Clause can come into play only if the form is testimonial. See Fisher, 425 U.S. at 410-412 (while act of production has "communicative aspects," the Fifth Amendment is implicated only if the communication is testimonial). The form itself is not "testimonial." It does not "communicate" any facts, and it is not sought for -- and does not have -- evidentiary value. By signing the form, petitioner makes no statement, either explicit or implicit, about the existence of foreign accounts, or about his control over any such accounts. The form simply indicates that petitioner will not object to the release of any records that may exist. And it does not "restate, repeat, or affirm" the contents of any records that subsequently are provided by a bank (Fisher, 425 U.S. at 409). There is thus "no incriminating testimony in the contents of the directive or the fact that (petitioner) must sign." United States v. Ghidoni, 732 F.2d 814, 817 n.4 (11th Cir.) (emphasis in original), cert. denied, 469 U.S. 932 (1984). Instead, as three of the four courts of appeals that have considered the issue have recognized, "the directive merely permits the bank to disclose information relating to any accounts with respect to which the bank records indicate (the signator's) authority to draw (i.e., any accounts with respect to which the bank thinks (the signator) has authority)" (Ghidoni, 732 F.2d at 818 (emphasis in original)). /9/ As a result, if the government obtains bank records after petitioner signs the form, the only factual statement made by anyone will be the banks implicit declaration that it believes the accounts to be petitioner's. Compare Fisher, 425 U.S. at 410, 412-413. As in Fisher, the government thus "is relying in no way on the 'truthtelling' of the (signator) to prove the existence of or his access to the documents" (id. at 411 (citation omitted)). Similarly, while the executed form allows the government access to a potential source of evidence, the form itself does not provide the government with any information it did not already have. The form does not point the government toward hidden accounts or otherwise provide any information that will assist the prosecution in uncovering evidence; the form therefore does not in any way relieve the government of its burden of discovering prosecution evidence "by the independent labor of its officers.'" Estelle, 451 U.S. at 462 (citation omitted). /10/ For similar reasons, petitioner's signature on the form would not authenticate any records provided by the bank: the form does not express any view on the authenticity of the documents, and petitioner -- who did not prepare the records -- could not, in any event, vouch for their accuracy. See Ghidoni, 732 F.2d at 818-819. See generally Fisher, 425 U.S. at 413; Fed. R. Evid. 901. At bottom, petitioner's signature on the consent form simply removes a nonconstitutional impediment imposed by foreign law on the production of third party documents. In arguing that he should not be compelled to remove this impediment, petitioner seeks the protection of the Fifth Amendment for records of accounts that have been (or will be) discovered by the government through its own efforts, and that are not themselves privileged -- even though his action in waiving the protection of foreign law would not, in itself, reveal anything or add anything to the government's case. Nothing in the language or policy of the Fifth Amendment requires such a result. Petitioner challenges (Br. 21-23) the proposition that he is simply being asked to remove an impediment to the production of evidence, asserting that the government is seeking to compel him to do more than "stand aside" and demonstrate "passive, nonverbal acquiescence in the government's access to evidence" (id. at 21-22). But a suspect who is directed to create a handwriting or voice examplar obviously is required to do more than "acquiesce( ) in the government's access to evidence." The crucial point in such a case, as in this one, is that the suspect is not required to make a testimonial communication. /11/ Here, petitioner is in fact asked to do no more than lift an impediment to the production of records by a third party. /12/ 2. Evidently recognizing that there must be some sort of assertion on his part before the privilege may be invoked, petitioner contends that the consent form is "testimonial" because it contains the implied factual representation that he has consented to the disclosure of hypothetical bank records (Br. 8-9). He then makes a brief attempt to argue that this assertion (and thus the form) might have evidentiary significance. Quoting from the majority opinion in Ranauro, petitioner offers (Br. 29-30 (quoting 814 F.2d at 793)) the following hypothetical case: Suppose that at trial the government were to introduce bank records produced in response to a subpoena that had been accompanied by the consent form and that it was not apparent from the face of the records or otherwise how (the signator) was linked to them. Suppose also that the government then introduced the subpoena and the consent form, and a government witness testified that the bank records were received in response to the subpoena and consent form. Would not the evidence linking (the signator) to the records be his own testimonial admission of consent? We believe it would. This analysis is seriously flawed. At the outset, the form cannot be said to make a testimonial assertion about the "fact" of petitioner's consent. As we explain above, petitioner is required to perform an act, not to make an assertion, when he places his signature on the form. The government wants to use the signature on the form for its legal significance, just as it uses compelled handwriting exemplars for their "identifying physical characteristic(s)" (Gilbert, 388 U.S. at 267). In neither case is the suspect's action compelled for its "content" (ibid.) or to obtain "any knowledge (the suspect) might have" (Wade, 388 U.S. at 222). In arguing to the contrary, petitioner appears to contend that the performance of every compelled act carries with it an implied assertion that the act has been performed by the person who was the object of the compulsion, which in turn makes performance of the act subject to the privilege. But the Court rejected this circular approach to the Fifth Amendment in Wade, Gilbert, and United States v. Dionisio, supra, when it held that there is nothing testimonial in the production of a handwriting or voice exemplar. Of course, it could be said in those cases (as it can in this one) that the supect, by placing his handwriting or voice sample on the exemplar (or his signature on the consent form), implicitly "acknowledged" that the writing or voice sample (or signature) was his. But as the holdings of those cases make clear, this sort of simple acknowledgement that the suspect in fact carried out the act that he was directed to perform is not "sufficiently testimonial for purposes of the privilege" (Fisher, 425 U.S. at 411). /13/ This analysis demonstrates that the central conclusion of the Ranauro majority -- that evidence provided by a consent form would be a "testimonial admission" within the meaning of the Fifth Amendment -- is incorrect. Dissenting in Ranauro, Judge Breyer explained (814 F.2d at 797-798) that, even if the majority's "farfetched scenario" came to pass and a consent form were admitted into evidence, the Fifth Amendment privilege (would) not apply, because the inference that the records belong to (the signator) would not depend upon the jury's belief in the truth of (the signator's) 'assertion' of consent. Rather, the inference would depend upon the non-assertive fact that (the signator) placed his signature at the bottom of the consent form. Whether (the signator) did so voluntarily or involuntarily, while wishing to release the documents or not wishing to release them, while thinking that he really was consenting or not, is all no more relevant than whether a suspect believes the truth of the words he speaks for purposes of voice identification. As Judge Breyer recognized, and as the Court has repeatedly held, there is no constitutional problem in requiring a suspect to take actions that will link him to the crime, so long as those actions are not testimonial; a suspect may, for example, be compelled to furnish a handwriting exemplar that will tie him to incriminating evidence already in the government's possession. Requiring petitioner to place his signature on the consent form at issue here does not compel a testimonial act -- an act that involves an assertion on petitioner's part -- any more than does requiring a suspect to provide such an exemplar, or to repeat the words spoken by the perpetrators in a bank robbery. It is the simple fact of petitioner's signature on the form, like the simple fact of a suspect's handwriting on an exemplar, that (if anything) is relevant here. As a result, in the unlikely event that a consent form found its way into evidence and was perceived to link petitioner to records produced by a bank, its use would not violate the Fifth Amendment. Even if the consent form were understood to carry with it a testimonial assertion of the "fact" of petitioner's consent, petitioner's concern that the form could be used against him at trial is without substance: the form "would have only minimal testimonial value and would not operate to incriminate" him (Doe, 465 U.S. at 613). The Ranauro court was incorrect in assuming that the form has evidentiary value. As we explain above, the form contains no statement by petitioner about the existence of any accounts or the authenticity of any account records. Any representations about the records and their relationship to petitioner must be made by the bank, and the fact that the bank's customer has consented to the disclosure of his records would say nothing about the correctness of the bank's representations. For that reason, two courts of appeals have held that consent forms such as the one here are inadmissible at trial because they lack probative value. Ghidoni, 732 F.2d at 818; In re Grand Jury Subpoena, 826 F.2d at 1171. By the same token, it is clear that the premise of the Ranauro court's hypothetical case -- that "it was not apparent from the face of the records or otherwise how (the signator) was linked to them" -- will never arise. Before bank records are admitted into evidence, bank officials will have to testify (or the government will have to offer equivalent evidence, see Fed. R. Evid. 901) to authenticate them and link them to the customer. Once that evidence is provided by the bank, a customer consent form such as the one in this case (even assuming that such a form had sufficient evidentiary significance to be relevant) would add nothing; the "existence and location of the (accounts would be) a foregone conclusion and the (consent form would) add( ) little or nothing to the sum total of the Government's information." Fisher, 425 U.S. at 411. If a consent form somehow were admitted into evidence alongside the testimony of a bank official, it thus would have such minimal probative value that it could not "pose( ) any realistic threat of incrimination to the (signator)" (id. at 412), /14/ See generally United States v. Apfelbaum, 445 U.S. 115, 128 (1980); Marchetti v. United States, 390 U.S. 39, 53 (1968) (citation omitted) ("The central standard for the privilege's application has been whether the claimant is confronted by substantial and 'real' and not merely trifling or imaginary, hazards of incrimination."); Zicarelli v. New Jersey State Comm'n of Investigation, 406 U.S. 472, 478 (1972) (same). /15/ CONCLUSION The decision of the court of appeals should be affirmed. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM S. ROSE, JR. Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General CHARLES A. ROTHFELD Assistant to the Solicitor General GARY R. ALLEN ROBERT E. LINDSAY ALAN HECHTKOPF Attorneys DECEMBER 1987 /1/ The United States branches of the foreign banks also were served with subpoenas directing them to produce petitioner's bank records. Citing the bank secrecy laws of their governments, the bank's refused to comply. See Pet. App. 17a n.2. /2/ The government's motion for reconsideration was presented with an affidavit from an Internal Revenue Service agent that provided evidence connecting petitioner to a number of suspect accounts; the agent acknowledged, however, that "as to at least one of the known accounts of which (the government) seeks bank records, there exists only speculation as to (petitioner's) involvement with the account" (Pet. App. 11a (footnote omitted)). /3/ Foreign banks that do business in the United States may be ordered to produce subpoenaed records located in foreign offices. See, e.g., In re Grand Jury Proceedings (Bank of Nova Scotia), 691 F.2d 1384 (11th Cir. 1982), cert. denied, 462 U.S. 1119 (1983); In re Marc Rich & Co., A.G., 707 F.2d 663 (2d Cir.), cert. denied, 463 U.S. 1215 (1983); United States v. Vetco Inc., 644 F.2d 1324, 1330 (9th Cir.), cert. denied, 454 U.S. 1098 (1981); Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1297 (3d Cir. 1979); In re Grand Jury Proceedings, 532 F.2d 404 (5th Cir.), cert. denied, 429 U.S. 940 (1976); In re Grand Jury 81-2, 550 F. Supp. 24 (W.D. Mich. 1982); SEC v. Banca Della Svizzera Italiana, 92 F.R.D. 111, 116 (S.D.N.Y. 1981). On the other hand, determining whether a foreign bank may be required to produce confidential records in violation of its domestic law involves an application of principles of international law and comity that turns on the facts of each case (see generally United States v. Davis, 676 F.2d 1025 (2d Cir. 1985)); as a result, the account holder's consent may be necessary to obtain records from a bank domiciled in a country that has a bank secrecy law. Citing a recent decision of the Grand Court of the Cayman Islands, amicus Government of the Cayman Islands maintains that a compelled consent such as the one at issue in this case would be ineffective under Cayman law (Br. 9-11 (citing In re Application by ABC, Ltd. under the Confidential Relationships (Preservation) (Amendment) Law, 1979, (1984) C.I.L.R. 130)). The cited decision was not appealed, however, and Cayman law on the point accordingly has not been definitively settled. In any event, the effectiveness of the consent under foreign law -- and the associated questions of comity discussed by amicus (Br. 13-16) -- have no bearing on the constitutional issue here. /4/ In its discussion of the policies underlying the privilege, the Court in Murphy explained that "(i)t reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates 'a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load'; our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life'; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes 'a shelter to the guilty,' is often 'a protection to the innocent.'" 378 U.S. at 55 (citations omitted). /5/ Nothing about the adversarial system of justice suggests that neither party may obtain probative evidence from the other. "The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts." United States v. Nixon, 418 U.S. 683, 709 (1974). See Kastigar v. United States, 406 U.S. 441, 443-444 (1972). The Court has interpreted the Self-Incrimination Clause with sensitivity to that point. See generally Couch, 409 U.S. at 336. As Justice Brennan has noted, "it is clear that the scope of the privilege does not coincide with the complex of values it helps to protect. Despite the impact on the inviolability of the human personality, and upon our belief in an adversary system of criminal justice * * * the prosecution is allowed to obtain and use * * * evidence which although compelled is generally speaking not 'testimonial.'" Grosso v. United States, 390 U.S. 62, 72-73 (1968) (citation omitted) (Brennan, J., concurring). /6/ As petitioner recognizes (Br. 17-18), every court of appeals that has considered cases involving compelled consent forms has held that the privilege shields only testimonial communications -- those that provide incriminating information. See In re Grand Jury Subpoena, 826 F.2d at 1168; In re Grand Jury Proceedings (Ranauro), 814 F.2d 791, 792-793 (1st Cir. 1987); id. at 797 (Breyer, J., dissenting); In re N.D.N.Y. Grand Jury Subpoena, 811 F.2d 114, 116 (2d Cir. 1987); In re United States Grand Jury Proceedings (Cid), 767 F.2d 1131 (5th Cir. 1985); United States v. Ghidoni, 732 F.2d 814, 816 (11th Cir.), cert. denied, 469 U.S. 932 (1984). /7/ The Court has subsequently characterized Kastigar as holding that "disclosure of private information may be compelled if immunity removes the risk of incrimination" (Fisher, 425 U.S. at 400). /8/ This is hardly a novel conclusion; courts have routinely held that instructions or orders from one person to another are verbal acts that are "neither true nor false" and therefore cannot be excluded from evidence as hearsay. United States v. Shepherd, 739 F.2d 510, 514 (10th Cir. 1984). See United States v. Miller, 771 F.2d 1219, 1233 (9th Cir. 1985); United States v. Tuchow, 768 F.2d 855, 868 (7th Cir. 1985); United States v. Gibson, 675 F.2d 825, 834 (6th Cir.), cert. denied, 459 U.S. 972 (1982); United States v. Wiley, 519 F.2d 1348, 1350 (2d Cir. 1975), cert. denied, 423 U.S. 1058 (1976). /9/ See also In re United States Grand Jury Proceedings (Cid), 767 F.2d 1131, 1132 (5th Cir. 1985); In re Grand Jury Subpoena, 826 F.2d at 1170. But see In re Grand Jury Proceedings (Ranauro), 814 F.2d 791 (1st Cir. 1987). /10/ Because the form provides no information about where petitioner's hypothetical accounts are located, the government will have to identify banks that hold the accounts and serve the banks with subpoenas; the consent form, when forwarded along with a subpoena, will (if it is effective under local law) simply make it possible for the recipient bank to comply with the government's request. /11/ Petitioner suggests that the Fifth Amendment privilege comes into play whenever the suspect's compelled act has "evidentiary" significance (Br. 27-29). As the Schmerber line of cases indicates, this statement is not literally correct. We do agree that the privilege may be asserted whenever the compelled act has testimonial significance. Petitioner's citation (Br. 28-29) of In re Katz, 623 F.2d 122 (2d Cir. 1980), however, does not establish such significance in this case. That decision held that the Fifth Amendment privilege might apply to the production of incriminating documents by a suspect's attorney. Here, of course, there is no attorney-client relationship between petitioner and the banks that hold his accounts. /12/ Similarly, petitioner's suggestion that the "stand aside" rationale could be extended to require the suspect to state the location of records is entirely without merit; any such attempts would improperly force the suspect to disclose knowledge that would assist the government's investigation. /13/ Certainly, many acts do carry with them implicit testimonial assertions. When a suspect surrenders subpoenaed documents, for example, his act of production may effectively concede that the requested papers exist and that he controls them, and may serve to authenticate them. See Doe, 465 U.S. at 613. But these concessions do far more than simply acknowledge that it is the suspect who has performed the compelled act. /14/ As Judge Newman has explained, even if a consent form could be admitted as evidence at trial, "evidence from the bank, which would be necessary to authenticate the (bank) records, would likely furnish such clear proof that the account is that of the witness, that evidence of his consent to disclosure arguably (would) not expose him to any 'realistic threat of incrimination.'" In re Grand Jury Subpoena, 826 F.2d at 1175 n.5 (Newman, J., concurring) (quoting Fisher, 426 U.S. at 412). /15/ Petitioner points (Br. 31-32) to the district court's conclusion (see Pet. App. 12a-14a) that the consent form might provide a "necessary link" connecting him to certain accounts. As we explain above, however, this conclusion is incorrect as a matter of law: the link between petitioner and the accounts must be provided by the bank that produces the records. The district court also believed that the government might have difficulty obtaining authentication testimony from bank officials and that "conceivably the government could authenticate the records by introducing the signed consent, and by providing testimony of the government agent who received the records pursuant to the consent" (id. at 13a n.7). As we note above, however, the form does not express petitioner's view that any records produced by the banks are authentic, and Fisher makes clear that any statement to that effect by petitioner would not, in any event, establish that the records are genuine. Authentication evidence would have to be provided by bank officials.