The defendant was the target of a federal grand jury investigation. He was subpoenaed to produce records concerning accounts in foreign banks. However, the defendant invoked his Fifth Amendment privilege against self-incrimination when questioned about the existence or location of additional bank records. The foreign banks refused to comply with subpoenas to produce any account records without the customer’s consent. The government sought a court order directing the defendant to sign a consent form authorizing the foreign banks to disclose the defendant’s records.
Whether a court can compel a target of a grand jury investigation to authorize foreign banks to disclose records of his accounts?
Yes. However, the court may not require the defendant to explain the contents of these records or acknowledge their existence.
The Supreme Court held that a court order compelling the target of the grand jury investigation to authorize foreign banks to disclose records of his accounts, without identifying those documents or acknowledging their existence does not violate the target’s Fifth Amendment privilege against self-incrimination. The consent form itself was not testimonial in nature. In order to be “testimonial,” an accused’s oral or written communication or act of production must itself, explicitly or implicitly, relate a factual assertion or disclose information. The privilege may be asserted only to resist compelled explicit or implicit disclosures of incriminating information.
487 U.S. 201, 108 S. Ct. 2341 (1988)