United States v. Doe, 465 U.S. 605 (1984)

Author: Justice Marshall

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United States v. Doe, 465 U.S. 605 (1984)

JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, concurring in part and dissenting in part.

I concur in the Court’s affirmance of the Court of Appeals’ ruling that the act of producing the documents could not be compelled without an explicit grant of use immunity pursuant to 18 U.S.C. §§ 6002 and 6003. I dissent, however, with respect to that part of the Court’s opinion reversing the Court of Appeals. The basis for the reversal is the majority’s disagreement with the Court of Appeals’ discussion of whether the Fifth Amendment protected the contents of the documents respondent sought to withhold from disclosure. Inasmuch as the Court of Appeals’ judgment did not rest upon the disposition of this issue, this Court errs by reaching out to decide it. As JUSTICE STEVENS rightly insists, "`[t]his Court . . . reviews judgments, not statements in opinions.’" Post at 619 (quoting Black v. Cutter Laboratories, 351 U.S. 292, 297 (1956)).

Contrary to what JUSTICE O’CONNOR contends, ante at 618, I do not view the Court’s opinion in this case as having reconsidered whether the Fifth Amendment provides protection for the contents of "private papers of any kind." This case presented nothing remotely close to the question that JUSTICE O’CONNOR eagerly poses and answers. First, as noted above, the issue whether the Fifth Amendment protects the contents of the documents was obviated by the Court of Appeals’ rulings relating to the act of production and statutory use immunity. Second, the documents at stake here are business records{1} which implicate a lesser degree of concern for privacy interests than, for example, personal diaries.{2}

Were it true that the Court’s opinion stands for the proposition that "the Fifth Amendment provides absolutely no protection for the contents of private papers of any kind," ibid., I would assuredly dissent. I continue to believe that, under the Fifth Amendment, "there are certain documents no person ought to be compelled to produce at the Government’s request." Fisher v. United States, 425 U.S. 391, 431-432 (1976) (MARSHALL, J., concurring in judgment).

1. More particularly, we review the judgment that the Court of Appeals entered in this case, not the judgment that it may have entered in some other case, see ante at 609, n. 6, or some isolated statement in its opinion commenting on the holding in some other case.

2. Similarly, during oral argument in the District Court, Judge Sarokin stated:

If you can resolve it to my satisfaction, I have no hesitancy in saying, yes, I will direct the turn-over, but only on the condition that the act of turn-over will not be utilized against the target.

App. 35.


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Chicago: Marshall, "Marshall, J., Concurring and Dissenting," United States v. Doe, 465 U.S. 605 (1984) in 465 U.S. 605 465 U.S. 619. Original Sources, accessed April 22, 2018, http://www.originalsources.com/Document.aspx?DocID=CYD99NUIUPWGSY4.

MLA: Marshall. "Marshall, J., Concurring and Dissenting." United States v. Doe, 465 U.S. 605 (1984), in 465 U.S. 605, page 465 U.S. 619. Original Sources. 22 Apr. 2018. www.originalsources.com/Document.aspx?DocID=CYD99NUIUPWGSY4.

Harvard: Marshall, 'Marshall, J., Concurring and Dissenting' in United States v. Doe, 465 U.S. 605 (1984). cited in 1984, 465 U.S. 605, pp.465 U.S. 619. Original Sources, retrieved 22 April 2018, from http://www.originalsources.com/Document.aspx?DocID=CYD99NUIUPWGSY4.