If the act of producing documents will amount to testimony about the presence and location of potentially incriminating evidence, a grand jury witness could invoke the Fifth Amendment right against producing documents. It’s called the “act of creation privilege”.
However, if the government is already aware of the documents’ presence and position, the act of production lacks a testimonial component, and the witness is unable to invoke the Fifth Amendment. A witness must prove both (1) evidence and (2) compulsion to claim a Fifth Amendment right against record production. The Fifth Amendment protects you from being forced to testify against yourself, which is why both testimony and compulsion are needed.
How Does Taking the Fifth Amendment Work?
The witness must first describe the evidence in question. A document may be the equivalent of testimony in one of two ways: (a) the document itself may be the equivalent of testimony, or (b) the process of making it may be the equivalent of testimony. Also, there are two ways to compel a document. It is possible to force the witness to (a) make it, or (b) create it.
If the witness argues that the document itself is evidence, he or she must show that the document was produced under duress. If a document was produced willingly, or in response to a regulatory requirement, such as a tax return, it is not compelled.
The Supreme Court has ruled that the Fifth Amendment cannot be used to prevent compliance with a regulatory system, such as tax laws, that was enacted for a reason unrelated to the enforcement of the country’s criminal laws. A witness cannot object to the production of a document simply because it is self-incriminating whether it was made willingly prior to the subpoena or was made pursuant to a regulatory requirement.
When Does it Apply?
For the Fifth Amendment to apply, there must be coercion in the creation if there is no compulsion in the making. If the witness argues that producing the document is the same as giving evidence, he or she must clarify the testimonial aspects of the development.
When the government did not know the presence and location of particular incriminating records, and the witness, by producing the documents, effectively testified about their existence and location, the Supreme Court held that development has testimonial aspects. Here are two examples of the problem when generating documents is equal to testimony. The Supreme Court ruled in Fisher v. United States that creation did not equate to testimony but it also ruled in United States v. Hubbell that it did.
The government was aware of the presence and location of potentially incriminating records in Fisher. The government was aware of the existence of working papers prepared by the taxpayers’ accountants, as well as their position, which was with the taxpayers’ lawyers. The government then presented the lawyers with a summons for their appearance. The taxpayers’ assertion of Fifth Amendment protection was rejected by the Court, which ruled that the “life and position of the papers are a foregone conclusion” and that “the taxpayer contributes little or nothing to the sum total of the Government’s knowledge by conceding that he in fact has the papers.”
Has the Fifth Amendment Ever Been Breached?
In Hubbell, on the other hand, the witness contributed a great deal to the government’s knowledge by delivering the letters. The government served a subpoena in Hubbell, requiring the submission of records before a grand jury. The witness invoked his Fifth Amendment right to remain silent in the face of self-incrimination. As a result, the government granted immunity to the witness, who then released the papers. The government then used details taken from the records to prosecute the witness, and the Fifth Amendment was breached, according to the Court.
In comparison to Fisher, Hubbel’s prosecutor had no knowledge of the existence or location of incriminating records, and reacting to the subpoena was “akin to answering a series of interrogatories requesting a witness to reveal the existence and location of specific documents fitting those broad descriptions.”
The most important issue in production proceedings, according to both rulings, is whether the prosecutor was aware of the presence and location of incriminating records prior to the subpoena. The witness would not be allowed to use the Fifth Amendment right against development if the prosecutor is aware, but if not, the witness can assert the Fifth Amendment.
The Supreme Court held in Hubbell that the government bears the burden of proof on this crucial issue: whether the prosecutor knew. The government argued in Hubbell that respondents had to prove a substantial connection between the coerced testimonial contact and some part of the evidence used in the investigation or at trial. The government’s claim was dismissed by the Court, which ruled that the government could prove that its testimony came from sources completely apart from the immunized correspondence. In Hubbell, the prosecution acknowledged its lack of prior knowledge as well as its unauthorized use of the records.
Document Production by Corporate Officers or Corporations
Corporations and other collective organizations, such as unions and partnerships, are not covered by the Fifth Amendment, according to the collective entity doctrine. Only their officers and employees may work on behalf of these companies and other collective bodies. According to the doctrine, workers and officers cannot assert the Fifth Amendment right on behalf of the company. The doctrine applies regardless of the size of the company or relationship. Due to the collection agency doctrine, a company’s right to assert the Fifth Amendment protection is solely contingent on its organizational structure.
If a company wishes to incorporate or form a relationship, it would be unable to assert the Fifth Amendment later. If it wishes to form as a sole proprietorship, however, its owner may claim Fifth Amendment protection. As a result, the application of the Fifth Amendment would depend on the nature of the business enterprise, which is generally made without regard for the Fifth Amendment.
Fifth Amendment Privileges
A corporate custodian of documents cannot object to a grand jury subpoena for corporate records by citing the Fifth Amendment right on behalf of the company because the corporation has no Fifth Amendment privilege.
Also, a corporate custodian cannot refuse a subpoena for corporate documents by claiming his or her own Fifth Amendment right. Even if the records would incriminate the individual and the custodian is the sole shareholder, the custodian cannot object to the creation of corporate records. Since the custodian keeps the corporate records in a representative, not a personal capacity, the custodian cannot claim personal privilege.
If you have been subpoenaed by the federal government, speak to nationwide federal criminal attorneys at Norman Spencer PC today to protect your rights!