Fisher v. United States, 425 U.S. 391 (1976)

Taxpayers being investigated by the Internal Revenue Service (IRS) provided workpapers prepared by their accountant to their attorney, and the IRS then served a summons on the attorney to obtain the personal records of the clients. While the attorney could not assert the Fifth Amendment Self-Incrimination Privilege on behalf of the client, the Supreme Court found that if the documents would have been protected by the Fifth Amendment in the hands of the taxpayers, then the attorney–client privilege would protect them when the attorney holds the records.

The Court rejected the argument that the Fifth Amendment protects the contents of voluntarily produced documents, largely overturning its 1886 holding in Boyd v. United States. The Court changed the Fifth Amendment analysis by holding that the Self- Incrimination Privilege does apply to an individual’s act of production in response to a subpoena in a grand jury investigation, which can communicate information about the existence, possession, and authenticity of the records.

A recipient of a grand jury subpoena or an IRS summons may not resist production in every case, however, if the government can show that it will not gain any information from the individual’s act of production because the existence, possession, and authenticity of the records is a foregone conclusion. The act of production issue is highly fact-specific and depends on the types of records sought and the scope of the government’s knowledge about them. Fisher makes clear that the content of the records is not protected by the Self-Incrimination Privilege.

PETER J. HENNING

References and Further Reading

• Allen, Ronald J., and M. Kristin Mace, The Self-Incrimination Clause Explained and Its Future Predicted, Journal of Criminal Law & Criminology 94 (2004): 2:243–293.
• LaFave, Wayne R., Jerold H. Israel, and Nancy J. King. Criminal Procedure. 2nd Ed. Vol. 3, St. Paul, MN: Thomson West, 1999, pp. 248–254.
• Reitz, Kevin J., Clients, Lawyers and the Fifth Amendment: The Need for a Projected Privilege, Duke Law Journal 41 (1991): 3:572–660.

Cases and Statutes Cited

• Boyd v. United States, 116 U.S. 616 (1886)

See also Boyd v. United States, 116 U.S. 616 (1886); Grand Jury Investigation and Indictment; Self-Incrimination (V): Historical Background