green
Positive treatment
Issue: personal claimIL ↗
Issue: personal privilegeNC ↗
Issue: personal waiverFL ↗
Issue: wholesome principleKS ↗
Quoted verbatim 4×
19.4 score
Quick Summary
A party is privileged from producing evidence but is not privileged from its production once the evidence has been transferred to a third party.
A defendant was convicted of concealing money from a bankruptcy trustee after his business books were transferred to the trustee and used as evidence in his trial. The defendant argued that the transfer of these books violated his constitutional protections. The court considers whether a party is protected from the use of documentary evidence once the legal title and possession of that evidence have passed to a third party. The court holds that while a party may be privileged from producing certain evidence, they are not privileged from its production once it is in the hands of another. The transfer of books under bankruptcy law does not violate the privilege against self-incrimination.
G Cite
cited 14× by 12 distinct cases, last quoted 2002 · 9 courts↓ Fading ·
…a party is privileged from producing the evidence but not from its production.
at p. 458
✓
Topic ↗
cited 14× by 11 distinct cases, 1922–2016 · 9 courts→ Stable ·
…a party is privileged from producing the evidence, but not from its production.
at p. 572
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cited 5× by 2 distinct cases, last quoted 2007 · 2 courts↓ Fading ·
…a party is privileged from producing the evidence, but not from its production
✓
Treatment trajectory · 1918 → 2026 · click a year to view as-of
1918
1972
2026
Top citers, strongest first. 42 distinct citers.
How cited ↗
discussed
Cited "but see"
Ho Wan Kwok
Moreover, in upholding the required records exception post-Fisher, the Supreme Court in Bouknight noted that The State’s regulatory requirement in the usual case may neither compel incriminating testimony nor aid a criminal prosecution, but the Fifth Amendment protections are not thereby necessarily unavailable to the person who complies with the regulatory requirement after invoking the privilege and subsequently faces prosecution. 493 U.S. at 561–62; but see Johnson v. United States, 228 U.S. 457 (1913) (holding, pre-Fisher, that books and records produced under Harris could be used in a…
examined
Cited "but see"
Couch v. United States
(4×)
also: Cited as authority (rule)
But cf. Johnson v. United States, 228 U. S. 457 (1913).
examined
Cited "but see"
United States v. Schoeberlein
(3×)
But see Johnson v. United States, 228 U.S. 457 , 33 S.Ct. 572 , 57 L.Ed. 919 (1913), and United States v. Couch, 449 F.2d 141 (4 Cir. 1971), quoted in the text, and other cases cited in the text. 12 .
examined
Cited "but see"
United States v. Hoyt
(4×)
also: Cited as authority (rule)
Ed. 732 ; but see Johnson v. United States, 228 U. S. 457, 458 , 33 S. Ct. 572 , 57 L.
examined
Cited as authority (verbatim quote)
Jacob F. Butcher, Debtor-Appellant-Cross-Appellee v. John H. Bailey, Iii, Trustee, Trustee in Bankruptcy-Appellee-Cross-Appellant
a party is privileged from producing the evidence, but not from its production.... he may not keep the protection from the introduction of documentary evidence that he would have had while he retained it, after the title and possession have gone to someone else
examined
Cited as authority (quoted)
In Re Lufkin
(3×)
a party is privileged from producing the evidence, but not from its production.
examined
Cited as authority (quoted)
State v. Fitch
(3×)
a party is privileged from producing the evidence but not from its production
examined
Cited as authority (quoted)
Slone-Stiver v. Broock (In Re Tower Metal Alloy Co.)
(3×)
a party is privileged from producing the evidence, but not from its production
discussed
Cited as authority (rule)
Steven R. Peabody v. State of Indiana Office of the Secretary of State Securities Division
This is a misapplication of the Fifth Amendment right against self-incrimination. [20] The Fifth Amendment to the U.S. Constitution states, in part: “No person . . . shall be compelled in any criminal case to be a witness against himself[.]” The U.S. Supreme Court made it clear in Fisher v. United States that this personal right prohibits the government from compelling an individual to produce evidence against himself; however, this right does not prevent evidence against oneself being produced by third-parties. 425 U.S. 391, 399 (1976) (citing Johnson v. United States, 228 U.S. 457, 458 (…
cited
Cited as authority (rule)
People v. Craig
As Mr. Justice Holmes put it: ‘A party is privileged from producing the evidence but not from its production.’ Johnson v. United States, 228 U.S. 457, 458 [, 57 L.
cited
Cited as authority (rule)
IN RE: GRAND JURY v.
Thus, a “‘party is privileged from producing evidence but not from its production.’” Fisher, 425 U.S. at 399 (quoting Johnson v. United States, 228 U.S. 457, 458 (1913)).
discussed
Cited as authority (rule)
People v. Sanchez
(2×)
“This case thus falls within the principle stated by Mr. Justice Holmes: ‘A party is privileged from producing the evidence but not from its production.’ Johnson v. United States, 228 US 457, 458 [ 57 L.Ed. 919, 920 , 33 S.Ct. 572 ].” ( 427 U.S. at p. 473 [ 49 L.Ed.2d at p. 638 ].) Andresen , like Fisher , concludes that no Fifth Amendment violation occurs when a defendant, without being compelled to do so, makes a writing and the government, without compelling the defendant to produce the writing, obtains that writing.
cited
Cited as authority (rule)
State v. Ducharme
As Mr. Justice Holmes put it: ‘A party is privileged from producing the evidence but not from its production.’ Johnson v. United States, 228 U.S. 457, 458 [ 33 S.Ct. 572, 572 , 57 L.Ed. 919 ] (1913).
discussed
Cited as authority (rule)
People v. Superior Court (Broderick)
(Johnson v. United States (1913) 228 U.S. 457, 458 [ 57 L.Ed. 919, 920 , 33 S.Ct. 572 ].) Later, in Couch v. United States (1973) 409 U.S. 322 [ 34 L.Ed.2d 548 , 93 S.Ct. 611 ] the court held a taxpayer’s Fifth Amendment right against compulsory self-incrimination was not violated by the taxpayer’s accountant being required to produce the taxpayer’s business and tax records possessed by the accountant. 5 (Id. at p. 329.) The court found the ingredient of personal compulsion missing as the taxpayer was compelled to do nothing.
cited
Cited as authority (rule)
State v. Perea
Ed. 2d at 554 (quoting Johnson v. United States, 228 U.S. 457, 458 , 33 S. Ct. 572, 572 , 57 L.
discussed
Cited as authority (rule)
People v. Doe
Accordingly, this matter is governed by the long-established principle that “[a] party is privileged from producing the evidence but not from its production” (Johnson v United States, 228 US 457, 458).
discussed
Cited as authority (rule)
State v. Graham
The Court quoted Mr. Justice Holmes: “A party is privileged from producing the evidence but not from its production.” Id. at 328 , 93 S.Ct. at 616 , 34 L.Ed.2d at 554 (quoting Johnson v. United States, 228 U.S. 457, 458 , 33 S.Ct. 572, 572 , 57 L.Ed. 919, 920 (1913)).
discussed
Cited as authority (rule)
Andresen v. Maryland
(2×)
This case thus falls within the principle stated by Mr. Justice Holmes: "A party is privileged from producing the evidence but not from its production." Johnson v. United States, 228 U. S. 457, 458 (1913).
discussed
Cited as authority (rule)
In Re January 1976 Grand Jury. Edward M. Genson, Attorney at Law, Witness-Appellant v. United States
As stated by Mr. Justice Holmes with typical succinctness, “[a] party is privileged from producing the evidence, but not from its production.” Johnson v. United States, 228 U.S. 457, 458 , 33 S.Ct. 572, 572 , 57 L.Ed. 919, 920 (1913).
discussed
Cited as authority (rule)
Fisher v. United States
(2×)
The Court has held repeatedly that the Fifth Amendment is limited to prohibiting the use of "physical or moral compulsion" exerted on the person asserting the privilege, Perlman v. United States, 247 U. S. 7, 15 (1918); Johnson v. United States, 228 U. S. 457, 458 (1913); Couch v. United States, supra, at 328, 336.
cited
Cited as authority (rule)
Shapiro v. Chase Manhattan Bank, N. A.
As Mr. Justice Holmes put it: 'A party is privileged from producing the evidence but not from its production.’ Johnson v. United States, 228 U. S. 457, 458 (1913).
discussed
Cited as authority (rule)
In Re Grand Jury Appearance of Alvin S. Michaelson, Esquire
As the court in Couch said: “The criterion for Fifth Amendment immunity remains not the ownership of property but the ‘ “physical or moral compulsion” exerted.’ Perlman [v. United States], 247 U.S. [7] at 15, 38 S.Ct. [417] at 420 [ 62 L.Ed. 950 ], We hold today that no Fourth or Fifth Amendment claim can prevail where, as in this case, there exists no legitimate expectation of privacy and no semblance of governmental compulsion against the person of the accused. * * * * * * "It is important to reiterate that the Fifth Amendment privilege is a personal privilege: it adheres basically…
cited
Cited as authority (rule)
Shaffer v. Wilson
As Mr. Justice Holmes said [in Johnson v. United States, 228 U.S. 457, 458 (1913)], ‘A party is privileged from producing the evidence but not from its production.
discussed
Cited as authority (rule)
United States v. Donald M. Zouras
As Mr. Justice Holmes put it: ‘A party is privileged from producing the evidence but not from its production.’ Johnson v. United States, 228 U.S. 457, 458 [ 33 S.Ct. 572 , 57 L.Ed. 919 (1913).” More relevant to the case before us, the court continued: “The Constitution explicitly prohibits compelling an accused to bear witness ‘against himself’: it necessarily does not proscribe incriminating statements elicited from another.” The privilege then, is one against self-incrimination.
discussed
Cited as authority (rule)
California Bankers Assn. v. Shultz
(2×)
Since a party incriminated by evidence produced by a third party sustains no violation of his own Fifth Amendment rights, Johnson v. United States, 228 U. S. 457, 458 (1913); Couch v. United States, 409 U. S., at 328 , the depositor plaintiffs here present no meritorious Fifth Amendment challenge to the recordkeeping requirements.
discussed
Cited as authority (rule)
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics
(2×)
Mr. Justice Holmes once put it succinctly, “A party is privileged from producing the evidence but not from its production.” Johnson v. United States, 228 U. S. 457, 458 (1913).
discussed
Cited as authority (rule)
United States of America v. Carl Cohen
(2×)
Johnson v. United States, 228 U. S. 457 , 33 S.Ct. 572 , 57 L.Ed. 919 (1913) (Mr. Justice Holmes): “A party is privileged from producing the evidence, but not from its production.” Id. at 458 , 33 S.Ct. at 572.
cited
Cited as authority (rule)
State v. Zuehlke
“A party is privileged from producing the evidence but not from its production,” said Mr. Justice Holmes in Johnson v. United States, 228 U. S. 457, 458, 33 Sup. Ct. 572, 57 L.
cited
Cited as authority (rule)
In re E. Dier & Co.
“A party is privileged from producing the evidence, but not from its production.” 228 U. S. 458 , 33 Sup. Ct. 572, 57 L.
examined
Cited "see"
United States v. Renzi
(3×)
She noted, however, that service of a warrant does not require a property owner "to respond either orally or by physically producing the property, including records.” Id.; see Andresen v. Maryland, 427 U.S. 463, 473 , 96 S.Ct. 2737 , 49 L.Ed.2d 627 (1976) (" 'A party is privileged from producing the evidence but not from its production.' " (quoting Johnson v. United States, 228 U.S. 457, 458 , 33 S.Ct. 572 , 57 L.Ed. 919 (1913) (Holmes, J.))).
examined
Cited "see"
Moyer v. Commonwealth
(6×)
Therefore, "[t]he risk of authentication is not present where the documents are seized pursuant to a search warrant." [3] Id. at 473 n. 7, 96 S.Ct. at 2745 n. 7; see id. at 473, 96 S.Ct. at 2745 (noting that this approach is in keeping with the principle that "`[a] party is privileged from producing the evidence but not from its production'") (quoting Johnson v. United States, 228 U.S. 457, 458 , 33 S.Ct. 572, 572 , 57 L.Ed. 919 (1913)).
examined
Cited "see"
Moyer v. Commonwealth
(6×)
Therefore, “[t]he risk of authentication is not present where the documents are seized pursuant to a search warrant.” 3 Id. at 473 n. 7, 96 S.Ct. 2737 ; see id. at 473 , 96 S.Ct. 2737 (noting that this approach is in keeping with the principle that “ ‘[a] party is privileged from producing the evidence but not from its production’ ” (quoting Johnson v. United States, 228 U.S. 457, 458 , 33 S.Ct. 572 , 57 L.Ed. 919 (1913))).
examined
Cited "see"
Paul Bigby v. United States Immigration and Naturalization Service
(3×)
See Johnson v. United States, 228 U.S. 457, 458 , 33 S.Ct. 572, 572 , 57 L.Ed. 919 (1913).
examined
Cited "see"
Burritt Interfinancial Bancorporation v. Brooke Pointe Associates
(3×)
See Johnson v. United States, 228 U.S. 457, 458 , 33 S. Ct. 572 , 57 L.
examined
Cited "see"
United States v. James Othel Boruff
(6×)
Cf. Salvucci, 448 U.S. at 93, n. 8 , 100 S.Ct. at 2554 n. 8 17 United States v. Hernandez Camacho, 779 F.2d 227 (5th Cir.1985), cert. denied, 476 U.S. 1119 , 106 S.Ct. 1981 , 90 L.Ed.2d 664 (1986) 18 Simmons, 88 S.Ct. at 976 ; see Note, Resolving Tensions Between Constitutional Rights: Use Immunity in Concurrent or Related Proceedings, 76 Col.L.R. 674 (1976) 19 See e.g., Alderman v. United States, 394 U.S. 165, 174 , 89 S.Ct. 961, 966-67 , 22 L.Ed.2d 176 (1969); Hampton v. United States, 425 U.S. 484, 490-91 , 96 S.Ct. 1646, 1650 , 48 L.Ed.2d 113 (1976) 20 Rakas v. Illinois, 439 U.S. 128, 140 …
examined
Cited "see"
In Re Kroh
(3×)
See Johnson *491 v. United States, 228 U.S. 457, 458 , 33 S.Ct. 572 , 57 L.Ed. 919 (1913).
examined
Cited "see"
United States v. Edwin Murray
(3×)
See Johnson v. United States, 228 U.S. 457, 458 , 33 S.Ct. 572 , 57 L.Ed. 919 (1913).
examined
Cited "see, e.g."
In Re Connelly
(6×)
See also National Acceptance Co. of America v. Bathalter, 705 F.2d 924, 926 (7th Cir.1983). “[A] man cannot protect his property from being used to pay his debts by attaching to it a disclosure of crime.” Johnson v. United States, 228 U.S. 457, 459 , 33 S.Ct. 572, 572 , 57 L.Ed. 919 (1913).
examined
Cited "see, e.g."
Roy D. Garner v. United States
(3×)
See also Meltzer, Privileges Against Self-Incrimination and the Hit-and-Run Opinion, in 1971 Sup.Ct.Rev. 16-25 23 An earlier case, Johnson v. United States, 228 U.S. 457 , 33 S.Ct. 572 , 57 L.Ed. 919 (1913), might also serve as a starting point.
discussed
Cited "see, e.g."
People Ex Rel. Scott v. Pintozzi
(2×)
See also Johnson v. United States, 228 U.S. 457 , 57 L.Ed. 919 ; In re Harris, 221 U.S. 274 , 55 L.Ed. 732 .
examined
Cited "see, e.g."
United States v. Hopps
(3×)
See also Johnson v. United States, 228 U.S. 457, 458 , 33 S.Ct. 572 , 57 L.Ed. 919 ; In re Bob, 2 Cir., 76 F.2d 131 ; United States v. Hoyt, S.D.N.Y., 53 F.2d 881 .
Retrieving the full opinion text from the archive…
Johnson
v.
United States
v.
United States
715.
Supreme Court of the United States.
Apr 28, 1913.
Mr. Edward J. Eox, with whom Mr. Robert A. Stotz and Mr. James W. Fox- were on the brief, for plaintiff in error., Mr. Assistant Attorney General Harr, with whom Mr. Solicitor General Bullitt was on the brief, for the United States.
Holmes.
Cited by 157 opinions | Published
Citer courts: Court of Criminal Appeals of A… (3) · S.D. Ohio (3) · E.D. Tennessee (3) · Sixth Circuit (1)
[*458] Mr. Justice Holmes
delivered the opinion of the court.
This is an indictment for concealing money from the defendant’s trustee in bankruptcy. The defendant was convicted and sentenced subject to exceptions which raised in different forms the questions whether his books properly were admitted against him and whether the evidence warranted the verdict.-
On the first point the facts are simply that the books had been transferred to the trustee in accordance- with § 70 of the Bankruptcy Act of July 1, 1898, 30 Stat. 544, c. 541, and were produced before the grand jury and béfore the petit jury at the trial. That the transfer lawfully could be required is established by Matter of Harris, 221 U. S. 274. But the defendant lays hold of an expression in that case, ‘the properly careful provision to protect him from use of the books in aid of prosecution,’ as an intimation that the books could not be put to such a use.
Courts proceed step by step. And we now have to consider whether the cautious statement in the former case marked the limit of the law in a case where no rights, if there were any, were saved- when the books were transferred. The answer was implied in that decision. A party is privileged from producing the evidence but not from its production. The transfer by bankruptcy is no different from a transfer by execution of a volume with a confession written on the fly leaf. It is held that a criminal cannot protect himself by getting the legal title to corporate books. Wheeler v. United States, 226 U. S. 478. But the converse proposition is by ho means true, that he may keep the protection from the introduction of documentary evidence that he would have had while he retained it, after the title and possession have gone to some one else.
It is true that the transfer of the books may have been[*459] against the defendant’s will, but it is compelled by the law as a necessary incident to the distribution of his property, not in order to obtain criminal evidence against him. Of course a man cannot protect his property from being used to pay his debts by attaching to it a disclosure of crime. If the documentary confession comes .to-a third hand alio intuitu, as this did, the use of it in court does not compel the defendant to be a witness against himself.
As to the question of evidence, it is enbugh to say- that there was evidence tending as far as it went to show that the defendant foresaw what was coming and attempted to save something from the wreck. There is no certificate-that.all the evidence is before us, and we should not be warranted in declaring ás matter of law that the Government did not make out a case. See Seigel v. Cartel, 164 Fed. Rep. 691.
Judgment affirmed.