Chapter 9 Documents and the Fifth Amendment: the Act of Production Privilege

• Library: The Privilege of Silence: Fifth Amendment Protections Against Self-Incrimination (ABA) (2014 Ed.)

CHAPTER 9 Documents and the Fifth Amendment: The Act of Production Privilege

While the law regarding the application of the Fifth Amendment to the production of documents has long been in flux, the Supreme Court has now effectively dismantled the Fifth Amendment's application to the incriminating contents of voluntarily created documents that it set forth in Boyd v. United States, 116 U.S. 616 (1886). The modern Supreme Court has limited the application of the Fifth Amendment to the act of producing documents in response to compulsion. Only where the act of production is incriminating—by implicitly admitting the existence or possession of the documents sought, or that the documents are authentic—does the Fifth Amendment provide protection.

In the Boyd case, the government sought to obtain documents from a partnership in the course of forfeiture proceedings. The Supreme Court agreed with Boyd that the incriminating contents of the requested documents were protected by the Self-Incrimination Clause from compelled production, observing that there is no difference between compelling a person to produce his incriminating private books and papers and compelling the person to incriminate himself through oral testimony. Id. at 633-35.

In Fisher v. United States, 425 U.S. 391 (1976), the Supreme Court significantly restricted Boyd's application of the Fifth Amendment to the contents of voluntarily created documents. Fisher reasoned that unless the government requires an individual to prepare the papers subject to production or to affirm the truth of their incriminating contents, no self-incriminating information contained within them is covered by the privilege. Instead, Fisher limited the definition of "compelled testimony" to the act of producing documents demanded by a subpoena or other legal process, reasoning that the act of production "tacitly concedes the existence of the papers demanded and their possession or control by the [producing party]," as well as indicating the person's belief that the documents produced are those requested by the subpoena. Id. at 409-10.

Although the Supreme Court has never expressly overruled Boyd and squarely held that the contents of all voluntarily created documents are outside the ambit of the Fifth Amendment, the Supreme Court's application of the Fifth Amendment since Fisher confirms that the only Fifth Amendment privilege applicable to demands for documents is an "act of production" privilege. Thus, in United States v. Doe, 465 U.S. 605 (1984) ("Doe I"), the Court considered a grand jury subpoena for the business records of a sole proprietorship. The lower court had quashed the subpoena, holding that the papers were protected under Boyd because their contents were potentially self-incriminating and because the act of producing them to the grand jury would admit their existence and authenticity. Id. at 607-08. The Supreme Court squarely rejected the first ground of decision, holding that because the documents were created voluntarily and because the subpoena did not require the witness to restate, repeat, or affirm the truth of their contents, no Fifth Amendment privilege existed on that basis. Id. at 611-12. Justice O'Connor, concurring, wrote separately "just to make explicit what is implicit in [the Court's] opinion: that the Fifth Amendment provides absolutely no protection for the contents of private papers of any kind." Id. at 618. However, the Court accepted the findings of the lower court that, in the particular circumstances of the case, the witness's act of producing the documents would involve testimonial self-incrimination—by admitting their existence and his possession of them, as well as by authenticating them through his production. Id. at 613-14 and nn.11-13.

In Boyd, the Court explicitly articulated a privacy rationale for the protection of voluntarily created documents, which rationale was repeated in subsequent decisions. See Murphy v. Waterfront Comm'n of N.Y. Harbor, 378 U.S. 52, 55 (1964); Bellis v. United States, 417 U.S. 85, 91 (1974). The privacy rationale led many commentators to hypothesize that there was a distinction between the protection afforded the contents of private documents, such as diaries, and the contents of business records. However, since Fisher and Doe I, the vast majority of courts have concluded that as long as the government has not compelled the creation of the document, even distinctly private or personal documents may be compelled to be produced—despite their incriminating contents.

• Packwood v. Senate Select Comm. on Ethics, 510 U.S. 1319, 1321-22 (1994) (Rehnquist, Circuit J.) (denying Senator Packwood's application for a stay pending appeal of a decision enforcing a subpoena duces tecum for his diaries and stating that certiorari was not likely to be granted on Senator Packwood's claim that the Fifth Amendment privilege prevented the compelled production of the diaries).
• In re Grand Jury Subpoena Duces Tecum, 1 F.3d 87, 90 (2d Cir. 1993) (Fifth Amendment does not protect defendant's personal calendar).
• United States v. Wujkowski, 929 F.2d 981, 983 (4th Cir. 1991) (contents of desk calendars, pocket calendars, appointment books, and planners are not privileged).
• In re Grand Jury Proceedings on Feb. 4, 1982, 759 F.2d 1418, 1420-21 (9th Cir. 1985) (contents of personal journal not protected by Fifth Amendment).
• In re Steinberg, 837 F.2d 527, 529-30 nn.3-4 (1st Cir. 1988) (reviewing cases on issue of whether Fifth Amendment protected voluntarily created personal documents).
• Moyer v. Commonwealth, 531 S.E.2d 580, 583-89, 33 Va. App. 8, 15-27 (2000) (denying motion to suppress diaries that appellant argued were seized in violation of his Fourth and Fifth Amendment rights).

Of course, the act of production doctrine may nonetheless provide a valid objection to the production of voluntarily created personal papers or other tangible items.

• People v. Havrish, 866 N.E.2d 1009, 1015, 8 N.Y.3d 389, 396-97 (2007) (suppressing an unregistered handgun turned over to the police pursuant to a protective order directing the defendant to surrender any firearms, on the basis that the act of producing the gun "involved the commission of a crime in the presence of the police.").
• Skakel v. State, No. FSTCV 054006524S, 2006 WL 2773470, at *3 (Conn. Super. Ct. Sept. 12, 2006) (denying motion to compel production of personal telephone records, e-mail correspondence, diaries, and other personal documents, based on act of production privilege).
• Commonwealth v. Hughes, 404 N.E.2d 1239, 1245-46, 380 Mass. 583, 594-95 (1980) (order requiring defendant to produce a certain firearm was vacated, where the act of production would make an implicit statement about the existence, location, possession, and authenticity of the weapon, thereby incriminating the defendant).

The "Foregone Conclusion" Exception to the Act of Production Privilege

The Supreme Court's focus on the extent to which the act of production involves a testimonial communication has...