Documents and Physical Evidence

• Jurisdiction: Maryland

VI. Documents and physical evidence

A. Compelled document creation

1. The "required records doctrine" permits statutes that require documents to be created if the purpose is regulatory and not to obtain incriminating evidence

The law may require creation of a document, which neither violates the privilege against compelled self-incrimination, not creates a chilling effect on the privilege against compelled self-incrimination, if the purpose of requiring the creation of the document is regulatory and not designed to obtain incriminating statements by making the document creator "testify." In Curran v. Price, 334 Md. 149 (1994), the Court of Appeals stated: "The Supreme Court has held that the privilege may not be invoked to avoid complying with a State's regulatory regime which advances public purposes unrelated to the enforcement of criminal laws." Id. at 175 (citations omitted).

This is known as the "required records doctrine." Marchetti v. United States, 390 U.S. 39, 49 (1968); Haynes v. United States, 390 U.S. 85, 98 (1968); Shapiro v. United States, 335 U.S. 1, 75-76 (1948). In Andreson, 269 Md. at 327-28, the Court of Appeals applied the "required records doctrine" and held that the trial court could compel an attorney to release his accounts relating to real estate transactions.

2. Permissible to compel document creation

In California v. Byers, 402 U.S. 424, 426-27 (1971), the defendant was charged with violating a statute that required drivers to stop and furnish their names and addresses, and to complete an accident report, when involved in a vehicular accident. The Supreme Court held that the statute did not implicate the privilege against compelled self-incrimination because the statute was regulatory and not criminal. The statute required an accident report to be submitted by all motorists involved in an accident, and it was not designed to make drivers confess to crimes. Id. at 430-31.

3. Not permissible to compel document creation

The law may not require the creation of a document if the purpose of that requirement is to obtain incriminating evidence. Leary v. United States, 395 U.S. 6, 26-27 (1969) (Marijuana Tax Act); Haynes, 390 U.S. at 98-99 (firearm registration of individuals with firearms convictions); Grosso v. United States, 390 U.S. 62, 65 (1968) (excise taxes on wagering); Marchetti, 390 U.S. at 47-48 (tax reporting applied only to gamblers); Albertson v. Subversive Activities Control Board, 382 U.S. 70, 79 (1965) (requirement that communists register).

B. Compelled production of one's child based on an agreement between the child's parent and the State

In Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549, 555 (1990), the Supreme Court held that the privilege against compelled self-incrimination was not violated by holding a parent in contempt for failure to produce her child when requested, after having agreed to do so as a condition of custody.

In In re Ariel G., 383 Md. 240 (2004), the Court of Appeals held that the Fifth Amendment could be invoked when the trial court compelled the child's mother to testify as to the child's location. The Court stated: "Although [the mother] may have been required to produce [her child if the child] was within her control, compelling her to inform the court of the whereabouts of the subject of the production order is foreclosed by the Fifth Amendment, if properly asserted as here." Id. at 249.

C. Compelled document production

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