Finding What Was Lost: Sorting Out the Custodian's Privilege Against Self-incrimination from the Compelled Production of Records

• Publication year: 2021

77 Nebraska L. Rev. 34. Finding What Was Lost: Sorting Out the Custodian's Privilege Against Self-Incrimination from the Compelled Production of Records

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Peter J. Henning*

Finding What Was Lost: Sorting Out the Custodian's Privilege Against Self-Incrimination from the Compelled Production of Records

TABLE OF CONTENTS

I. Introduction .......................................... 35
II. The Allure of Subpoenaing an Investigative Target .... 40
III. Privacy, Papers, and the Privilege: Overcoming The
Legacy of Boyd v. United States ....................... 45
IV. Fisher v. United States: What Does "Authentication"
Mean at the Investigative Stage ....................... 49
A. The Irrelevance of Authentication Before the Grand
Jury .............................................. 49
B. Distinguishing the Investigative and Trial Phases in
the Act of Production Analysis ..................... 51
C. Once Lost, Can the Privilege be Reasserted? ....... 54
V. Braswell v. United States: Limiting Use at Trial of the
Custodian's Act of Production ......................... 58
VI. Compelling a Custodian's Testimony as "Auxiliary" to
the Act of Production ................................. 63
A. Curcio v. United States: Dictum Masquerading as
Fifth Amendment Analysis ........................ 63
B. The Legacy of Curcio: "Auxiliary" Testimony and
the Business Records Exception ................... 69
1. Compelling Evidentiary Testimony to Avoid
Hearsay Problems ............................. 71
2. Calling the Defendant "to Be a Witness Against
Himself" ....................................... 73

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3. Assessing the Availability of the Fifth
Amendment Privilege in Its Proper Context .... 76
VII. Conclusion ............................................ 81

I. INTRODUCTION

The Fifth Amendment provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . ."(fn1) The privilege prohibits the government from requiring a person to testify if the declarant's statement may be incriminating in any subsequent criminal prosecution.(fn2) In addition to requesting testimony, prosecutors frequently demand that individuals and business organizations produce records and other types of physical evidence.(fn3) The Fifth Amendment does not protect the contents of records the author created voluntarily.(fn4) Compelling an individual to turn over papers is testimonial, however, and the Fifth Amendment may prohibit the government from requiring a response if the communicative act incriminates the declarant.(fn5)

An organization, unlike an individual, has no privilege under the Fifth Amendment to refuse to produce documents even if production

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would incriminate the organization.(fn6) Because an organization acts only through its members, the Supreme Court has held that representative members are not entitled to the same protection afforded individuals from producing their own personal documents.(fn7) An organization's representative subpoenaed to produce business records may not assert the privilege to avoid being incriminated by the act of production. Otherwise, according to the Court, the government's "reserved power of visitation would seriously be embarrassed, if not wholly defeated in its effective exercise, if guilty officers could refuse inspection of the records and papers of the corporation."(fn8) An organization, nominally represented by the custodian who actually complies with the government's demand, may be compelled to produce documents regardless of how personally incriminating that act may be to the custodian appearing on its behalf. Moreover, the government's authority to compel production is not affected by its interest in bringing charges at some later time against that custodian as an individual.(fn9)

Once the government compels a custodian to produce the documents, the question arises whether the prosecution can require the representative to provide additional information regarding the records that can be used in a later proceeding against that witness on the ground that the custodian has no Fifth Amendment privilege. Any attempt by the government to compel a defendant to furnish incriminating testimony, such as authentication of evidence, appears to contradict the language of the Fifth Amendment which prohibits the government from forcing a person "to be a witness against himself."(fn10)

Despite the apparent protection provided by the Fifth Amendment privilege, lower courts have held that an individual acting as a custodian of records can be required, qua custodian, to testify about documents produced in response to the government's demand. Although the witness usually appears before a grand jury and testifies only in the capacity of a custodian of records representing a corporate body,

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that testimony can provide the basis for the government to introduce the records into evidence against that person individually at trial.(fn11)

The two-prong rationale for compelling the custodian's testimony beyond the production of records is, first, that the statements are only "auxiliary" to the production of the records;(fn12) and, second, that the Fifth Amendment protection does not apply to corporations called upon to furnish documents.(fn13) If a court can compel a records custodian to give oral testimony in a pretrial proceeding merely because that person acts on behalf of a corporation, then it is just a short step to have the government call the defendant to testify at trial, not in a personal capacity, but solely as the custodian of records. If that were to happen, then the primary protection afforded by the privilege against self-incrimination, that the government cannot require a defendant to testify at his own trial, will be undermined.(fn14)

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While this possibility may appear farfetched, the Supreme Court's reasoning for denying the privilege against self-incrimination to organizations could be manipulated to support the prosecution calling a defendant to testify in its case-in-chief. The Court has never considered fully the protection of the Fifth Amendment for a custodian of records compelled to provide information and then prosecuted individually. The analysis that supports compelling a custodian to testify about documents at a preliminary proceeding hinges on the erroneous assumption that the government's power to compel production of records and related testimony is coextensive during both the investigation and the prosecution of a crime. That assumption can be traced to the Court's obtuse statements regarding the availability of the Fifth Amendment privilege and its failure to distinguish between the investigative and trial stages of a case.(fn15)

The Court's decisions regarding the scope of the privilege fall into two general categories depending upon the status of the person asserting the privilege. One category consists of individuals resisting the production of personal documents while the other consists of corporate custodians seeking to protect records that would be personally incriminating. Regardless of the person's status, however, the Court has never recognized explicitly in its reasoning that a Fifth Amendment issue arose only in the investigative stage and not during the subsequent prosecution. The clear language of the privilege, however, should prohibit the government from compelling a person to provide incriminating evidence at trial. Yet, the Court has used language in its opinions that evokes issues more relevant to the trial phase of a criminal case than the investigative phase. Thus, the scope of the Court's Fifth Amendment analysis is confusing.

The Court has not faced directly the question whether the compelled production of evidence that may be permissible at the investigative phase of a case, when the privilege against self-incrimination does not apply, should govern the availability of the Fifth Amendment right at trial to prevent the use of compelled testimony. The Court's offhand use of trial-related evidentiary terms such as "authentication"

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of records produced to a grand jury (fn16) obscures the fact that the proper interpretation of the privilege limits the Fifth Amendment's availability to a custodian only during the investigative stage, not the adjudicative stage when that person has been charged as an individual. The government's authority to compel a custodian to produce documents during the investigative phase, when the privilege is unavailable, does not necessarily govern the application of the privilege against self-incrimination at trial. Unfortunately, the Supreme Court's poor choice of words in analyzing the scope of the Fifth Amendment has led lower courts to the mistaken conclusion that the availability of the Fifth Amendment privilege is identical for each phase of a proceeding. Once lost, the privilege cannot then be asserted by a witness on the same subject at trial.

This Article considers the tension between the privilege against self-incrimination and the government's authority to require a custodian to furnish documents and testify about them when those statements will be used by the prosecution to seek the admission of the records at trial. While the language of the Fifth Amendment prohibits the government from forcing a defendant to testify at his criminal trial, the rationale adopted by courts for requiring a custodian of records to provide information about documents undermines the protection afforded the witness at trial. This diminished constitutional protection is a result of confusion arising from the Supreme Court's opinions on the availability of the privilege to witnesses responding to subpoenas for documents, opinions which did not consider the continuing availability of the Fifth Amendment at the trial stage, regardless of whether a person could invoke the privilege during the...