50
Thomas, J., concurring
munications "that are 'testimonial' in character." Ante, at 34. None of this Court's cases, however, has undertaken an analysis of the meaning of the term at the time of the founding. A review of that period reveals substantial support for the view that the term "witness" meant a person who gives or furnishes evidence, a broader meaning than that which our case law currently ascribes to the term. If this is so, a person who responds to a subpoena duces tecum would be just as much a "witness" as a person who responds to a subpoena ad testificandum.1
Dictionaries published around the time of the founding included definitions of the term "witness" as a person who gives or furnishes evidence. Legal dictionaries of that period defined "witness" as someone who "gives evidence in a cause." 2 G. Jacob, A New Law-Dictionary (8th ed. 1762); 2 T. Cunningham, New and Complete Law-Dictionary (2d ed. 1771); T. Potts, A Compendious Law Dictionary 612 (1803); 6 G. Jacob, The Law-Dictionary 450 (T. Tomlins 1st American ed. 1811). And a general dictionary published earlier in the century similarly defined "witness" as "a giver of evidence." J. Kersey, A New English Dictionary (1702). The term "witness" apparently continued to have this meaning at least until the first edition of Noah Webster's dictionary, which defined it as "[t]hat which furnishes evidence or proof." An American Dictionary of the English Language (1828). See also J. Story, Commentaries on the Constitution of the United States § 931 (1833) (using phrases "to give evidence" and "to furnish evidence" in explanation of the Self-Incrimination Clause). See generally Nagareda, Compul-1 Even if the term "witness" in the Fifth Amendment referred to someone who provides testimony, as this Court's recent cases suggest without historical analysis, it may well be that at the time of the founding a person who turned over documents would be described as providing testimony. See Amey v. Long, 9 East. 472, 484, 103 Eng. Rep. 653, 658 (K. B. 1808) (referring to documents requested by subpoenas duces tecum as "written . . . testimony").
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