2.22 - X. Oral Direct Authentication— The Supreme Court And The Second Circuit; New York's Immunity Statute

• Jurisdiction: New York

X. ORAL DIRECT AUTHENTICATION—
THE SUPREME COURT AND THE
SECOND CIRCUIT; NEW YORK’S IMMUNITY STATUTE

In 1929, Judge Learned Hand wrote that if production of documents could be forced, “it may be made effective by compelling the producer to declare that the documents are genuine.”²⁷⁴ Though finding no need as yet to explicitly pass on the validity of Judge Hand’s observation, the Supreme Court has nevertheless stated:

The custodian’s act of producing books or records in response to a subpoena duces tecum is itself a representation that the documents produced are those demanded by the subpoena. Requiring the custodian to identify or authenticate the documents for admission in evidence merely makes explicit what is implicit in the production itself. The custodian is subjected to little, if any, further danger of incrimination. ²⁷⁵

None of the above was meant to imply that a non-privileged record custodian may be required, over a claim of privilege, to state the whereabouts of records not produced.²⁷⁶ Furthermore, that “testimony auxiliary to the production is as unprivileged as are the [unprivileged] documents themselves”²⁷⁷ does not mean that a records custodian, absent immunity, may be compelled to testify as to any and all phases of an entity’s activities.²⁷⁸ As to the custodian who fails to produce non-privileged records, the Second Circuit has held,

A plain reading of Curcio [v. United States, 354 U.S. 118 (1957)], and McPhaul [v. United States, 364 U.S. 372 (1960)] leads to the conclusion that the duty of the putative custodian of an organization’s records extends beyond mere production or nonproduction: when the agent fails to produce documents that are the subject of a valid summons or subpoena, if called before a court, he must give sworn testimony that he does not possess them. The agent’s statement that he does not possess the records at issue is merely part of his duty to comply with a lawful demand for them. It might be called testimony auxiliary to his nonproduction, by analogy to Judge Learned Hand’s holding that an agent must identify the documents he does produce because “testimony auxiliary to the production is as unprivileged as are the documents themselves.” . . . Just as an agent’s identification of documents he has produced “merely makes explicit what is implicit in the production itself” . . . so does an agent’s statement that he does not possess documents he has failed to produce make explicit what is implicit in the nonproduction. Because the agent’s testimony is unprivileged, it is not a waiver of his privilege against self-incrimination as to other matters. ²⁷⁹

Compelled testimony that is auxiliary to the production or nonproduction of privileged documents stands on a different footing.

The answers to those questions, as well as the act of production itself, may certainly communicate information about the existence, custody and authenticity of the documents. Whether the constitutional privilege protects the answers to such questions, or protects the act of production itself, is a question that is distinct from the question whether the unprotected contents of the documents themselves are incriminating. ²⁸⁰

Two decisions from the Supreme Court seem to confirm the constitutional correctness of these propositions, thus dispelling some uncertainty that Doe had engendered.²⁸¹ They are Braswell v. United States and Baltimore City Department of Social Services v. Bouknight.

Braswell presented the question of whether a custodian of corporate records—here a classic alter ego corporation—could quash a subpoena for such records on the ground that his act of production would incriminate him in violation of the Fifth Amendment.

The plain mandate of [its prior] decisions is that without regard to whether the subpoena is addressed to the corporation, or . . . to the individual in his capacity as a custodian . . . a corporate custodian . . . may not resist a subpoena for corporate records on Fifth Amendment grounds. ²⁸² . . . To be sure, the holding in Fisher—later reaffirmed in Doe—embarked upon a new course of Fifth Amendment analysis. We cannot agree, however, that it rendered the collective entity rule obsolete. ²⁸³

The Court reasoned that corporations may act only through their agents and that a corporate custodian’s “assumption of his representative capacity” entails the obligation to produce corporate records on proper demand. “Under [such] circumstances, the custodian’s act of production is not deemed a personal act, but rather an act of the corporation.”²⁸⁴ In passing, the Court reaffirmed the proposition that a corporate custodian’s act of producing books and records in response to a subpoena duces tecum is, ipso facto, a representation that the documents produced are those demanded by the subpoena. Therefore, requiring the custodian to identify or authenticate the documents for admission in evidence merely makes explicit what was implicit in the act of production itself.²⁸⁵

Fifth Amendment principles aside, the Braswell decision is rooted in policy.

[R]ecognizing a Fifth Amendment privilege on behalf of the records custodians of collective entities would have a detrimental impact on the Government’s efforts to prosecute “white-collar crime,” one of the most serious problems confronting law enforcement authorities. “The greater portion of evidence of wrongdoing by an organization or its representatives is usually found in the official records and documents of that organization. Were the cloak of the privilege to be thrown around these impersonal records and documents, effective enforcement of many federal and state laws would be impossible.” If custodians could assert a privilege, authorities would be stymied not only in their enforcement efforts against those individuals but also in their prosecutions of organizations. ²⁸⁶

Braswell did not leave a corporate records custodian, as an individual, shorn of all legitimate Fifth Amendment protection. “Because the custodian acts as a representative, the act is deemed one of the corporation and not the individual. Therefore, the Government . . . may make no evidentiary use of the ‘individual act’ against the individual.”²⁸⁷

As a momentary aside, it is noted that the Eighth Circuit Court of Appeals has held that the “individual act” preclusion applies at the grand jury stage as well as at trial. “Braswell necessarily means that the government may not tell the grand jury which corporate custodian has produced a particular document, if that information might be incriminating.”²⁸⁸ The Third Circuit has held that proving that a corporate records custodian withheld...