United States v. Hubbell

The Court held that “the act of production” itself may implicitly communicate “statements of fact.” By “producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic.” Here, the answers to the prosecutor’s questions and the act of production could certainly communicate information about the existence, custody, and authenticity of the documents. In addition, the Fifth Amendment protection extends to compelled statements that lead to the discovery of incriminating evidence, even though the statements themselves are not incriminating and are not introduced into evidence. It is undeniable that providing a catalog of existing documents fitting within any of the eleven broadly worded subpoena categories could provide a prosecutor with a “lead to incriminating evidence” or “a link in the chain of evidence needed to prosecute.” Additionally, it was necessary for the defendant to make extensive use of “the contents of his own mind” in identifying the hundreds of documents responsive to the requests in the subpoena.