Couch v. United States
409 U.S. 322 (1973)

Mr. Justice POWELL delivered the opinion of the Court.

On January 7, 1970, the Government filed a petition in the United States District Court for the Western District of Virginia, pursuant to 26 U.S.C. 7402(b) and 7604(a), seeking enforcement of an Internal Revenue summons in connection with an investigation of petitioner's tax liability from 1964-1968. The summons was directed to petitioner's accountant for the production of:

All books, records, bank statements, cancelled checks, deposit ticket copies, workpapers and all other pertinent documents pertaining to the tax liability of the above taxpayer.

The question is whether the taxpayer may invoke her Fifth Amendment privilege against compulsory self-incrimination to prevent the production of her business and tax records in the possession of her accountant. Both the District Court and the Court of Appeals for the Fourth Circuit held the privilege unavailable. We granted certiorari, 405 U.S. 1038.

Petitioner is the sole proprietress of a restaurant. Since 1955 she had given bank statements, payroll records, and reports of sales and expenditures to her accountant, Harold Shaffer, for the purpose of preparing her income tax returns. The accountant was not petitioner's personal employee but an independent contractor with his own office and numerous other clients who compensated him on a piecework basis. When petitioner surrendered possession of the records to Shaffer, she, of course, retained title in herself.

During the summer of 1969, Internal Revenue Agent Dennis Groves commenced an investigation of petitioner's tax returns.

Special Agent Jennings of the Intelligence Division next commenced a joint investigation with Groves to determine petitioner's correct tax liability, the possibility of income tax fraud and the imposition of tax fraud penalties, and, lastly, the possibility of a recommendation of a criminal tax violation. Jennings first introduced himself to petitioner, gave her Miranda warnings as required by IRS directive, and then issued the summons to Shaffer after the latter refused to let him see, remove, or microfilm petitioner's records.

When Jennings arrived at Shaffer's office on September 2, 1969, the return day of the summons, to view the records, he found that Shaffer, at petitioner's request, had delivered the documents to petitioner's attorney. Jennings thereupon petitioned the District Court for enforcement of the summons, and petitioner intervened, asserting that the ownership of the records warranted a Fifth Amendment privilege to bar their production.


The importance of preserving inviolate the privilege against compulsory self-incrimination has often been stated by this Court and need not be elaborated. Counselman v. Hitchcock, 142 U.S. 547 (1892); Malloy v. Hogan, 378 U.S. 1 (1964); Miranda v. Arizona, 384 U.S. 436 (1966). By its very nature, the privilege is an intimate and personal one. It respects a private inner sanctum of individual feeling and thought and proscribes state intrusion to extract self-condemnation. Historically, the privilege sprang from an abhorrence of governmental assault against the single individual accused of crime and the temptation on the part of the State to resort to the expedient of compelling incriminating evidence from one's own mouth. United States v. White, 322 U.S. 694, 698 (1944). The Court has thought the privilege necessary to prevent any "recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality." Ullmann v. United States, 350 U.S. 422, 428 (1956).

In Murphy v. Waterfront Commn., 378 U.S. 52, 55 (1964), the Court articulated the policies and purposes of the privilege: "[O]ur unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates 'a fair state-individual balance by requiring the government ... in its contest with the individual to shoulder the entire load,' ... our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life.' ..."

It is important to reiterate that the Fifth Amendment privilege is a personal privilege: it adheres basically to the person, not to information that may incriminate him. 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). The Constitution explicitly prohibits compelling an accused to bear witness "against himself"; it necessarily does not proscribe incriminating statements elicited from another. Compulsion upon the person asserting it is an important element of the privilege, and "prohibition of compelling a man ... to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him," Holt v. United States, 218 U.S. 245, 252-253 (1910) (emphasis added). It is extortion of information from the accused himself that offends our sense of justice.

In the case before us the ingredient of personal compulsion against an accused is lacking. The summons and the order of the District Court enforcing it are directed against the accountant. He, not the taxpayer, is the only one compelled to do anything. And the accountant makes no claim that he may tend to be incriminated by the production. Inquisitorial pressure or coercion against a potentially accused person, compelling her, against her will, to utter self-condemning words or produce incriminating documents is absent. In the present case, no "shadow of testimonial compulsion upon or enforced communication by the accused" is involved. Schmerber v. California, 384 U.S. 757, 765 (1966).

The divulgence of potentially incriminating evidence against petitioner is naturally unwelcome. But petitioner's distress would be no less if the divulgence came not from her accountant but from some other third party with whom she was connected and who possessed substantially equivalent knowledge of her business affairs. The basic complaint of petitioner stems from the fact of divulgence of the possibly incriminating information, not from the manner in which or the person from whom it was extracted. Yet such divulgence, where it does not result from coercion of the suspect herself, is a necessary part of the process of law enforcement and tax investigation.


Petitioner's reliance on Boyd v. United States, 116 U.S. 616 (1886), is misplaced. In Boyd, the person asserting the privilege was in possession of the written statements in question. The Court in Boyd did hold that "any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime," violated the Fourth and Fifth Amendments. Id., at 630. That case did not, however, address or contemplate the divergence of ownership and possession, and petitioner concedes that court decisions applying Boyd have largely been in instances where possession and ownership conjoined.... In Boyd, the production order was directed against the owner of the property who, by responding, would have been forced "to produce and authenticate any personal documents or effects that might incriminate him." United States v. White, 322 U.S., at 698. But we reiterate that in the instant case there was no enforced communication of any kind from any accused or potential accused.

Petitioner would, in effect, have us read Boyd to mark ownership, not possession, as the bounds of the privilege, despite the fact that possession bears the closest relationship to the personal compulsion forbidden by the Fifth Amendment. To tie the privilege against self-incrimination to a concept of ownership would be to draw a meaningless line. It would hold here that the business records which petitioner actually owned would be protected in the hands of her accountant, while business information communicated to her accountant by letter and conversations in which the accountant took notes, in addition to the accountant's own workpapers and photocopies of petitioner's records, would not be subject to a claim of privilege since title rested in the accountant. Such a holding would thus place unnecessary emphasis on the form of communication to an accountant and the accountant's own working methods, while diverting the inquiry from the basic purposes of the Fifth Amendment's protections....


Petitioner further argues that the confidential nature of the accountant-client relationship and her resulting expectation of privacy in delivering the records protect her, under the Fourth and Fifth Amendments, from their production. Although not in itself controlling, we note that no confidential accountant-client privilege exists under federal law, and no state-created privilege has been recognized in federal cases, Falsone v. United States, 205 F.2d 734 (C.A.5 1953), cert. denied, 346 U.S. 864; Gariepy v. United States, 189 F.2d 459, 463-464 (C.A.6 1951); Himmelfarb v. United States, 175 F.2d 924, 939 (C.A.9 1949), cert. denied, 338 U.S. 860; Olender v. United States, 210 F.2d 795, 806 (C.A.9 1954). Nor is there justification for such a privilege where records relevant to income tax returns are involved in a criminal investigation or prosecution. In Boyd, a pre-income tax case, the Court spoke of protection of privacy, 116 U.S., at 630, but there can be little expectation of privacy where records are handed to an accountant, knowing that mandatory disclosure of much of the information therein is required in an income tax return. What information is not disclosed is largely in the accountant's discretion, not petitioner's. Indeed, the accountant himself risks criminal prosecution if he willfully assists in the preparation of a false return. 26 U.S.C. 7206(2). His own need for self-protection would often require the right to disclose the information given him. Petitioner seeks extensions of constitutional protections against self-incrimination in the very situation where obligations of disclosure exist and under a system largely dependent upon honest self-reporting even to survive. Accordingly, petitioner here cannot reasonably claim, either for Fourth or Fifth Amendment purposes, an expectation of protected privacy or confidentiality.


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, 15 (1918).] 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, in applying constitutional principles, to interpret them in light of the fundamental interests of personal liberty they were meant to serve. Respect for these principles is eroded when they leap their proper bounds to interfere with the legitimate interest of society in enforcement of its laws and collection of the revenues....

[A concurring opinion by Justice Brennan and dissenting opinions by Justices Douglas and Marshall are omitted.]

Why is there no accountant-client privilege corresponding to the lawyer-client privilege? Is the claim for an accountant-client privilege significantly weaker than the claim for the lawyer-client privilege under either Wigmore's instrumental approach or the humanistic approach to privileges? Why did the client, Lillian Couch, not have a "legitimate expectation of privacy"? Does this concept have any intrinsic meaning in this context or is it a tautology?

If, after Couch, a client came to you for advice on how she should handle her tax records to enhance their confidentiality, how would you advise her? In Couch, would the taxpayer have been in a stronger position to claim a privilege if she had kept possession of the documents herself? If she had sent the documents to her attorney in the first instance and the attorney had then hired the accountant? To what extent does the nature of the thing sought to be disclosed--e.g., thoughts, business records, personal diary, weapons--affect the scope of privilege protection? To what extent is the scope of privilege protection dependent on why the claimant of the privilege conveyed the records to a third person, such as an accountant or lawyer?


div1.gif (1531 bytes)
Home | Contents | Topical Index | Syllabi | Search | Contact Us | Professors' Pages
Cases | Problems | Rules | Statutes | Articles | Commentary