United States v. Hubbell, 530 U.S. 27, 29 (2000)

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Cite as: 530 U. S. 27 (2000)

Thomas, J., concurring

poena ad testificandum, but not a subpoena duces tecum. Id., at 34. The Chief Justice dismissed the argument, holding that the right to compulsory process includes the right to secure papers—in addition to testimony—material to the defense. Id., at 34-35. This Court has subsequently expressed agreement with this view of the Sixth Amendment. See United States v. Nixon, 418 U. S. 683, 711 (1974). Although none of our opinions has focused upon the precise language or history of the Compulsory Process Clause, a narrow definition of the term "witness" as a person who testifies seems incompatible with Burr's holding. And if the term "witnesses" in the Compulsory Process Clause has an encompassing meaning, this provides reason to believe that the term "witness" in the Self-Incrimination Clause has the same broad meaning. Yet this Court's recent Fifth Amendment act-of-production cases implicitly rest upon an assumption that this term has different meanings in adjoining provisions of the Bill of Rights.5

II

This Court has not always taken the approach to the Fifth Amendment that we follow today. The first case interpreting the Self-Incrimination Clause—Boyd v. United States— was decided, though not explicitly, in accordance with the understanding that "witness" means one who gives evidence. In Boyd, this Court unanimously held that the Fifth Amendment protects a defendant against compelled production of books and papers. 116 U. S., at 634-635; id., at 638-639 (Miller, J., concurring in judgment). And the Court linked its interpretation of the Fifth Amendment to the common-5 Accepting the definition of "witness" as one who gives or furnishes evidence would also be compatible with my previous call for a reconsideration of the phrase "witnesses against him" in the Confrontation Clause of the Sixth Amendment. See White v. Illinois, 502 U. S. 346, 365 (1992) (opinion concurring in part and concurring in judgment).

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