2.5 - VI. The Fifth Amendment Does Not Protect “Required Records”

• Jurisdiction: New York

VI. THE FIFTH AMENDMENT DOES NOT PROTECT “REQUIRED RECORDS”

“[T]he privilege which exists as to private papers cannot be maintained in relation to records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulations, and the enforcement of restrictions validly established.”¹⁸⁸ “Required records” have “public aspects” in the hands of private citizens conducting publicly regulated businesses.¹⁸⁹ Thus “the fact that incriminating evidence may be the by-product of obedience to a regulatory requirement, such as filing an income tax return, maintaining required records, or reporting an accident, does not clothe such required conduct with the testimonial privilege.”¹⁹⁰ “To hold otherwise . . . would make enforcement of State and Federal laws impossible.”¹⁹¹

“Required records” are those “customarily kept” having “public aspects” as part of “an essentially noncriminal and regulatory area of inquiry,” the requirements of which are not directed at a “selective group inherently suspect of criminal activities” such as gamblers and drug pushers,¹⁹² but not used car salesmen—even those surnamed “Schmuck.”¹⁹³ “[T]he proper interpretation of the ‘required to be kept’ language,” according to the Second Circuit Court of Appeals, “is that it refers to the type of documents subject to summons and not the age of those documents”;¹⁹⁴ hence, the fact that “required records” after the passage of statutory or administrative time periods are no longer “required to be kept” does not render them immune from subpoena.

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Notes:

^[188] . Shapiro v. United States, 335 U.S. 1, 33 (1948); see generally Pennsylvania v. Labron, 518 U.S. 938 (1996) (For Fourth Amendment purposes, there is a “reduced expectation of privacy in an automobile owing to its pervasive regulation.”).

^[189] . See Grosso v. United States, 390 U.S. 62, 67–68 (1968); Davis v. United States, 328 U.S. 582, 589 (1946).

^[190] . United States v. Hubbell, 530 U.S. 27, 35 (2000) (citations omitted).

^[191] . People v. Doe, 59 N.Y.2d 655, 657, 463 N.Y.S.2d 405 (1983).

^[192] . See Marchetti v. United States, 390 U.S. 39, 57 (1968).

^[193] . In re Grand Jury Subpoena Duces Tecum Served Upon Underhill, 781 F.2d 64 (6th Cir.), cert. denied, 479 U.S. 813 (1986); see generally Schmuck v. United States, 489 U.S. 705 (1989). As to the Fourth Amendment, its identically worded state counterpart, N.Y. Const. art. 1, § 12, required records and...