Still More Still More on the Privilege Against Self-Incrimination: What Does It Apply To?

July 23, 2013
By Hanging Out with Carl Gunn



  • The Fifth Amendment doesn’t allow a person to refuse to produce incriminating statements or documents that already exist.
  • But there is a Fifth Amendment production for the “act of production,” which may additionally incriminate the person by establishing the existence of the documents, establishing possession of the documents, authenticating the documents, or showing knowledge of their contents.
  • This limited “act of production” privilege can still be valuable, because it forces the government to grant immunity for the act of production and show in a “Kastigar hearing” that any subsequent prosecution is completely independent of the information provided by the act of production.



These posts on the Fifth Amendment are triggering even more ideas as I get into them further. One that comes up is an important distinction between compelled statements – which the Fifth Amendment doesn’t allow – and compelled production of already existing statements. What do I mean by already existing statements? Well, it could be written statements in the form of records, letters, and such, or I suppose it could be oral statements in the form of recordings, though those may be less common.

Since the Fifth Amendment only bars the compulsion of testimony, it doesn’t prevent the government from forcing a person to produce incriminating documents or other statements she voluntarily created at some prior point in time. The Supreme Court spoke most recently in 2000 of “the settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not ‘compelled’ within the meaning of the privilege [against self-incrimination].” Hubbell v. United States, 530 U.S. 27, 35-36 (2000). (For those who are recent history buffs, this was the Webster Hubbell who was a friend of the Clintons and allegedly trying to protect them in the Whitewater investigation.) So if your client already put it down on paper on his own, it’s not covered by the Fifth Amendment. All that’s covered by the Fifth Amendment is trying to force her to say something new.

But all is not lost. At the same time the Court has established the “settled proposition” just described, it’s added a caveat, known as the “act of production” doctrine. As the Supreme Court explained in the same Hubbell case:

On the other hand, we have also made it clear that the act of producing documents in response to a subpoena may have a compelled testimonial aspect. We have held that “the act of production” itself may implicitly communicate “statements of fact.” By “producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic [blogger’s note: and possibly other damaging facts, such as his knowledge of the documents’ nature or contents].” . . . Whether the constitutional privilege . . . protects the act of production . . . is a question that is distinct from the question whether the unprotected contents of the documents themselves are incriminating.

Id., 530 U.S. at 36-37 (quoting Doe v. United States, 465 U.S. 201, 209 (1988)).

There is then a caveat to this caveat, however. There is “an equally long line of cases [that] has established that an individual cannot rely upon the privilege to avoid producing the records of a collective entity which are in his possession in a representative capacity, even if those records might incriminate him personally.” Bellis v. United States, 417 U.S. 85, 88 (1974). This “collective entity rule,” Braswell v. United States, 487 U.S. 99, 104 (1988), means your client can be required to produce records that she possesses on behalf of a collective entity such as a corporation, or, as put in the Bellis case just cited, any other “organization which is recognized as an independent entity apart from its individual members,” id., 417 U.S. at 92 (which leaves its own ambiguity for litigation). But even then, because “the custodian acts as a representative, the act is deemed one of the corporation and not the individual,” and so the government “may make no evidentiary use of the ‘individual act’ against the individual.” Braswell, 487 U.S. at 118. As explained in Braswell:

For example, in a criminal prosecution against the custodian, the Government may not introduce into evidence before the jury the fact that the subpoena was served upon and the corporation’s documents were delivered by one particular individual, the custodian. The Government has the right, however, to use the corporation’s act of production against the custodian. The Government may offer testimony – for example, from the process server who delivered the subpoena and from the individual who received the records – establishing that the corporation produced the records subpoenaed. The jury may draw from the corporation’s act of production the conclusion that the records in question are authentic corporate records, which the corporation possessed, and which it produced in response to the subpoena. And if the defendant held a prominent position within the corporation that produced the records, the jury may, just as it would had someone else produced the documents, reasonably infer that he had possession of the documents or knowledge of their contents. Because the jury is not told that the defendant produced the records, any nexus between the defendant and the documents results solely from the corporation’s act of production and other evidence in the case.


Subject to the caveat created by the collective entity rule, remember this act of production privilege. Asserting the privilege can be helpful even if it’s really the documents that are the problem, because the government will then have to give your client immunity to make her produce the documents. And that means they’ll need to show the documents are untainted in what’s called a “Kastigar hearing” (named after the case ofKastigar v. United States, 406 U.S. 441 (1972)). In that hearing, “the government must show that any evidence it intends to present is derived from a source independent of immunized testimony [or, in this instance, the act of production].” United States v. Crowson, 828 F.2d 1427, 1429 (9th Cir. 1987). And what the government must show is independent includes not just actual evidence introduced at the trial, but also things such as “assistance in focusing the investigation, deciding to initiate the prosecution, refusing to plea bargain, interpreting evidence, planning cross-examination, and otherwise generally planning trial strategy.” United States v. Crowson, 828 F.2d at 1430 (quoting United States v. McDaniel, 482 F.2d 305, 311 (8th Cir. 1973)). See also United States v. Danielson, 325 F.3d 1054, 1072 (9th Cir. 2003).

The Hubbell case is actually a good example of the government’s inability to do this in the “act of production” context. The Supreme Court ultimately held that the government couldn’t show the independence of its prosecution because the prosecutor needed the defendant’s assistance “both to identify the sources of information and to produce those sources”; “[i]t was unquestionably necessary for respondent to make extensive use of ‘the contents of his own mind’ in identifying the hundreds of documents responsive to the requests in the subpoena”; and “[t]he assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a lockbox.” Id., 530 U.S. at 43.

So don’t forget this nuance of the privilege against self-incrimination if your client gets a subpoena for already existing documents. The government can force production of the documents, but can’t use what your client explicitly or implicitly says about them – or any ideas, insights, or evidence derived from that.