The Self-Incrimination Clause of the Fifth Amendment prohibits the government from compelling an individual “to be a witness against himself.” The Supreme Court of the United States has long interpreted “witness” as “one who gives testimony.” Undoubtedly, this interpretation prevents the government from compelling a witness to take the stand and testify to his own demise. This interpretation also extends to the act of producing documents, giving rise to the so-called “act of production” doctrine. Yet if a court deems the testimonial value of the act minimal—in other words, not “sufficiently testimonial”—the government can compel production under the “foregone conclusion” exception. As technology has advanced, the extension and application of this doctrine has become increasingly challenging.
Recently, however, two sitting Supreme Court Justices have called into question the entire act of production doctrine. Specifically, on separate occasions, Justices Thomas and Gorsuch have indicated a willingness to revisit the meaning of “to be a witness.” In their view, substantial evidence shows that the original meaning of “to be a witness” was “to furnish evidence.” According to that reading, the government could no longer compel individuals to “give” evidence. While that interpretation may be faithful to the text of the Constitution, it may not be practical given recent technological advances. This Article contributes to recent self-incrimination clause debate by underscoring the potential difficulties that accompany the application of an original meaning approach to the “to be a witness” requirement. Namely, in the era of personal data privacy, taking the doctrine in a different direction may leave us no better off even if the revised path more faithfully adheres to the text and original meaning of the Fifth Amendment’s Self-Incrimination Clause.
Norman Hobbie Jr., Reconsidering the Foregone Conclusion Doctrine: Compelled Decryption and the Original Meaning of Self-Incrimination, 20 U.N.H. L. Rev. 51 (2021).