United States v. Hubbell, 530 U.S. 27, 30 (2000)

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56

UNITED STATES v. HUBBELL

Thomas, J., concurring

law understanding of the self-incrimination privilege. Id., at 631-632.

But this Court's decision in Fisher v. United States, 425 U. S. 391 (1976), rejected this understanding, permitting the Government to force a person to furnish incriminating physical evidence and protecting only the "testimonial" aspects of that transfer. Id., at 408. In so doing, Fisher not only failed to examine the historical backdrop to the Fifth Amendment, it also required—as illustrated by extended discussion in the opinions below in this case—a difficult parsing of the act of responding to a subpoena duces tecum.

None of the parties in this case has asked us to depart from Fisher, but in light of the historical evidence that the Self-Incrimination Clause may have a broader reach than Fisher holds, I remain open to a reconsideration of that decision and its progeny in a proper case.6

6 To hold that the Government may not compel a person to produce incriminating evidence (absent an appropriate grant of immunity) does not necessarily answer the question whether (and, if so, when) the Government may secure that same evidence through a search or seizure. The lawfulness of such actions, however, would be measured by the Fourth Amendment rather than the Fifth.

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