THE FIFTH AMENDMENT AS APPLICABLE TO GRAND JURY PROCEEDINGS
By far the most frequent issue encountered in the grand jury is the witness’s assertion of his or her Fifth Amendment privilege against self-incrimination. The Supreme Court has pointed out that the privilege “protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be used”.
Kastigar v. U.S., 406 U.S. 411, 445 (1972).
ANSWER NEED ONLY BE “ADVERSE”
The witness need not be guilty nor need the answer in fact incriminate the witness in order for him or her to invoke the Fifth Amendment privilege.
In Hoffman v. U.S., 341 U.S. 479 (1951), the Court held:
“The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime…. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” Hoffman v. U.S., 341 U.S. 479, 485 (1951).
Murphy v. Waterfront Commission, 378 U.S. 52, 94 (1964) (holding that “[The Fifth Amendment] protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used”);
Isaacs v. U.S., 256 F.2d 654 (8th Cir. 1958) (protesting of innocence does not bar claim of privilege);
Slochower v. Bd. of Education of N.Y., 350 U.S. 551, 557-58 (stating, “as we pointed out in Ullman, a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be embarrassed by ambiguous circumstances”);
Ex Parte Butler, 522 S.W.2d 196, 198 (Tex.Sup.Ct. 1975).
“A witness need only show that an answer to the question is likely to be hazardous to him.” Ex Parte Butler, 522 S.W.2d 196, 198 (Tex.Sup.Ct. 1975).
U.S. v. Parente, 449 F. Supp. 905, 907 (D.Conn. 1978);
U.S. v. U.S. Currency, 626 F.2d 11, 15 (6th Cir. 1980).
“It is settled that ‘a witness in a civil ” . . . “‘proceeding may decline to answer questions when to do so would involve a substantial risk of self-incrimination’.”
Wehling v. Columbia Broadcasting Systems, 608 F.2d 1084, 1087 n.5 (5th Cir. 1979) (noting that a civil litigant can invoke the privilege against self-incrimination whenever he “reasonably apprehends a risk of self-incrimination, ‘though no criminal charges are pending against him …and even if the risk of prosecution is remote'”);
In re Corrugated Container Antitrust Litigation, 620 F.2d 1086 (5th Cir. 1980);
In re Folding Carton Anti-Trust Litigation, 609 F.2d 867 (7th Cir. 1979);
“[This determination does not depend] upon a judge’s prediction of the likelihood of prosecution. Rather, …it is only when there is but a fanciful possibility of prosecution that a claim of Fifth Amendment privilege is not well taken…. When a witness can demonstrate any possibility of prosecution which is more than fanciful he has demonstrated a reasonable fear of prosecution sufficient to meet constitutional muster.”
However, compelling an accused to sign a consent form for the release of the document from institutions holding them has been held not to fit within the act of production doctrine.
U.S. v. Ghidoni, 732 F.2d 814, 816 (11th Cir. 1984);
In re Grand Jury Proceedings (Thier), 767 F.2d 1133, 1134 (5th Cir. 1985);
John Doe v. U.S., 487 U.S. 201, 108 S. Ct. 2341, 101 L.Ed.2d 184 (1988) (holding
that a grand jury target may be compelled to sign a consent form authorizing foreign banks to disclose records where such consent is general in nature without specifying or identifying the documents for acknowledging their existence).
REQUIRING A WITNESS TO INVOKE PRIVILEGE BEFORE GRAND JURY
A grand jury witness may be compelled to invoke his or her Fifth Amendment privilege before a grand jury.
U.S. v. Washington, 431 U.S. 181, 191 (1977);
Appeal of Angiulo, 579 F.2d 104, 106-07 (1st Cir. 1978);
U.S. v. Wolfson, 405 F.2d 779, 784-85 (2d Cir. 1968), cert. denied, 394 U.S. 940
(1969).
However, counsel might argue that the same considerations apply which prohibits calling a witness before a petit jury for the sole purpose of invoking his or her privilege against self-incrimination. The almost universal prohibition is based upon judicial concern that a petit jury will consider such assertion as admission of guilt.
U.S. v. Beecham, 582 F.2d 898, 908 (5th Cir. 1978), cert. denied 440 U.S. 920
(1979);
U.S. v. Lacouture, 495 F.2d 1237, 1240 (5th Cir. 1974);
U.S. v. Johnson, 488 F.2d 1206, 1211 (1st Cir. 1973), cert. denied, 419 U.S. 1053,
95 S. Ct. 631, 42 L.Ed.2d 648 (1974);
Bowles v. U.S., 439 F.2d 536, 542 (D.C. Cir. 1970) (en banc), cert. denied, 401
U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971);
U.S. v. Roberts, 503 F.2d 598, 600 (9th Cir. 1974), cert. denied, 419 U.S. 1113 (1975);
Horner v. State, 508 S.W.2d 371 (Tex.Cr.App. 1974);
U.S. v. Lyons, 703 F.2d 815 (5th Cir. 1983).
“It is, of course, ‘impermissibly prejudicial for the government to attempt to influence the jury by calling a witness it knows will invoke the fifth amendment’.” ABA Project on Standards for Criminal Justice, U.S. ATTORNEYS MANUAL, § 9-11.261 (June 1984); NEB. REV. STAT. ANN., § 29-14111(9); N.M. STAT. ANN., § 31-6-12(b).
The privilege is personal and, generally, may not be asserted vicariously on behalf of another or on behalf of a partnership or collective group.
Hale v. Henkel, 201 U.S. 43 (1906);
Wilson v. U.S., 221 U.S. 361 (1911) (regarding a corporation);
U.S. v. White, 322 U.S. 694 (1944) (regarding a collective group);
Bellis v. U.S., 417 U.S. 85 (1974).
Likewise, non-testimonial evidence is not protected by the Fifth Amendment even without a grant of immunity.
South Dakota v. Neville, 459 U.S. 553, 564 (1983) (compelling production of voice exemplars not Fifth Amendment violation);
U.S. v. Dionisio, 410 U.S. 1, 5 (1973) (using voice exemplars);
Gilbert v. California, 388 U.S. 263 (1967) (using handwriting exemplars).
IT IS THE COMPELLED PRODUCTION WHICH IS PROTECTED BY THE PRIVILEGE
The act of production doctrine extends the Fifth Amendment privilege to documents; however, because of the testimonial component involved in an act of production, the testimonial component can be described as the witness’ assurance, that the articles produced are the ones demanded. By producing them, the person is, in essence, vouching for them.
In re Grand Jury Subpoena (Kent), 646 F.2d 963, 968 (5th Cir. 1981);
U.S. v. Doe, U.S. v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed. 552 (1984).
Craib v. Bulmash, 243 Cal. Rptr. 567, 198 Cal.App.3d 20 (Cal.App. 2 Dist. 1988),
review granted, 246 Cal. Rptr. 5, 752 P.2d 443 (Cal. 1988) (stating Fifth Amendment privilege against self-incrimination applies where trustee of a personal, family trust was subpoenaed to produce time and payroll records, since the trust was not “an organized collective entity”).
In re Grand Jury Proceedings (Vargas), 727 F.2d 941, 946 (1Oth Cir. 1984).
See also In re Katz, 623 F.2d 122, 126 (2d Cir. 1980);
In re Grand Jury Subpoena Duces Tecum Dated June 13, 1983, 722 F.2d 981, 987 (2d Cir. 1983);
U.S. v. Fox, 721 F.2d 32, 36 (2d Cir. 1983).
As the Fifth Circuit noted in In re Grand Jury Subpoena (Kent), 646 F.2d 963 (5th Cir. 1981):
“The prevailing justification for the fifth amendment’s application to documentary subpoenas is the ‘implicit authentication’ rationale …the testimonial component involved in compliance with an order for production of documents ‘is the witness’ assurance, compelled as an incident of the process, that the articles produced are the ones
demanded…. ‘A defendant is protected from producing his documents in response to a subpoena duces tecum, for his production of them in court would be his voucher of their genuineness.’ There would then be ‘testimonial compulsion’.” In re Grand Jury Subpoena (Kent), 646 F.2d 963, 968 (5th Cir. 1981).
It is the communicative inferences that may be drawn from the production of the requested documents include the existence of the documents, possession of the documents, and the belief that the documents produced are the ones requested. U.S. v. Hubbell, 530 U.S. 27, 36 (2000). When these inferences are testimonial and incriminating, the Fifth Amendment privilege against self-incrimination attaches. Whether a subpoena implicates the Fifth Amendment depends on “the facts and circumstances of particular cases or classes thereof.” Id. The critical inquiry is whether the government can show it had such “prior knowledge of either the existence or the whereabouts” of the produced documents, that their existence and location is a “foregone conclusion.” Fisher v. United States, 425 U.S. at 411 (1976); Hubbell, 530 U.S. at 43-45.
FIFTH AMENDMENT PRIVILEGE PROTECTS AGAINST COMPELLED PRODUCTION OF RECORDS OF SOLE PROPRIETORSHIP
While there is no Fifth Amendment privilege as to corporations . . .
See Wilson v. U.S., 221 U.S. 361 (1911);
U.S. v. White, 322 U.S. 694 (1944) [labor union], or as to partnerships,
Bellis v. U.S., 417 U.S. 85, 88 (1974);
U.S. v. Alderson, 646 F.2d 421 (9th Cir. 1981),
. . . “[t]he privilege applies to the business records of the sole proprietor”. Bellis v. U.S., 417 U.S. at 87-88;
Blair v. City of Chicago., 201 U.S. 431 (1906);
In re Grand Jury Proceedings (McCoy), 601 F.2d 162 (5th Cir. 1979);
In re Oswalt, 607 F.2d 645 (5th Cir. 1979);
In re Grand Jury (Calluggi), 597 F.2d 851, 859 (3d Cir. 1979);
In re Grand Jury Subpoena (Kent), 646 F.2d 963, 968 (5th Cir. 1981);
Matter of Grand Jury Empanelled March 29, 1980, 680 F.2d 327, 332 (3d Cir.
1982);
I.C.C. v. Gould, 629 F.2d 847, 859 (3d Cir. 1980);
U.S. v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed. 552 (1984).
“The Fifth Amendment protection applicable to a sole proprietor’s business records is the same as the protection applicable to the records of an individual. …[a] sole proprietor’s Fifth Amendment privilege against self-incrimination protects the …records of the proprietorship from compelled production in response to a grand jury subpoena to a sole proprietor.” In re Grand Jury Subpoena (Kent), 646 F.2d 963, 968 (5th Cir. 1981).
The Supreme Court affirmed a lower court holding that compulsory production of a sole proprietorship’s business records is protected by the Fifth Amendment:
“[t]he business records of a sole Proprietorship are no different from the individual owner’s personal records The
turning over of the subpoenaed documents to the grand jury would admit their existence and authenticity. Accordingly, respondent was entitled to assert his Fifth Amendment privilege rather than produce the subpoenaed documents.”
U.S. v. Doe, 456 U.S. 605, 608, 104 S.Ct. 1237, 79 L.Ed. 552
(1984).
Furthermore, the district court has held that a passport is protected by the Fifth Amendment. In Re Candiotti, 729 F. Supp. 840 (S.D. Fla. 1990).
SIZE OR DIVERSITY OF SOLE PROPRIETORSHIP NOT RELEVANT
It “is also clear that …the Fifth Amendment may be invoked by a sole proprietor regardless of the magnitude of his business”, “the size of the organization,”
See Matter of Grand Jury Impaneled March 19, 1980, 680 F.2d 327, 330 (3d Cir.
1982);
or its “longevity.”
See Matter of Grand Jury Impanelled, 597 F.2d 851, 859 (3d Cir. 1979);
U.S. v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984) (holding Fifth
Amendment applicable to preclude compelled production of records from “several sole proprietorships” maintained by one individual).
The Supreme Court has stated that forcing a defendant to produce the business document himself automatically authenticates the documents and proves possession, thus relieving the government of the burden of authenticating the document and proving that the document was in the defendant’s possession.. U.S. v. Doe, 465 U.S. 605, 613, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984).
“Although the contents of a document may not be privileged, the act of producing the document may be. U.S. v. Doe, 465
U.S. 605, 612, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984) A
government subpoena compels the holder of the document to perform an act that may have testimonial aspects and an incriminating effect. As we noted in Fisher.
Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. It also would indicate the taxpayer’s belief that the papers are those described in the subpoena.”
U.S. v. Doe, 465 U.S. 605, 612, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984).
At least one court has applied the “Act of Production” Doctrine to a professional corporation’s records.
In re Grand Jury Matters, 745 F.2d 834 (4th Cir. 1984).
CUSTODIAN OF “CORPORATE RECORDS” HAS NO “ACT OF PRODUCTION” FIFTH AMENDMENT PRIVILEGE
However, the Supreme Court holds that a corporate representative [the company president] may not interpose his own Fifth Amendment privilege to refuse compelled production of corporate records, even though the “act of production” might be personally incriminating. Braswell v. U.S., 487 U.S. 99, 108 S. Ct. 2284, 101 L.Ed.2d 98 (1988).
“We note further that recognizing 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.”
Braswell v. U.S., 487 U.S. 99, 115 (1988) (relying on U.S. v. White, 322
U.S. 694, 700 (1944)).
“ 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.” Braswell v. U.S., 487 U.S. 99, 116 (1988).
See also In re Grand Jury Impaneled March 17, 1987, 836 F.2d 150 (3d Cir. 1987) (holding that a contrary ruling would provide an easy means for corporation suspected of criminal activity to place their documents beyond a grand jury’s reach).
But see Braswell v. U.S., 487 U.S. at 117 n.11, which states:
“We reject the limitation on the evidentiary use of the custodian’s act of production is the equivalent of constructive use immunity barred under our decision in [U.S. v. Doe, 465 U.S. 605, 616-17, 104 S. Ct. 1237, 79 L.Ed.2d 552 (1984)]. Rather, the limitation is a necessary concomitant of the notion that a corporate custodian acts as an agent and not an individual when he produces corporate records in response to a subpoena addressed to him in his representative capacity. We leave open the question whether the agency rationale supports compelling a custodian to produce corporate records when the custodian is able to establish, by showing for example that he is the sole employee and officer of the corporation, that the jury would inevitably conclude that he produced the records.”
The “act of production” doctrine, which precludes compelling an individual from producing records where that very act may have incrimination aspects, see Fisher; Doe; Braswell, has not eliminated the “required records” exception to the privilege.
REQUIRED RECORDS
Such protection from compelled production of records of a sole proprietorship does not extend to “required records” [e.g. records required by law to be kept in order that there may be suitable information as to matters subject to the Government regulation].
Shapiro v. U.S., 335 U.S. 1 (1948);
Davis v. U.S., 328 U.S. 582 (1946);
In re Grand Jury Proceedings (McCoy), 601 F.2d 162 (5th Cir. 1979). So long as such records have “public aspects”.
Grosso v. U.S., 390 U.S. 62 (1968);
Spevach v. Klein, 385 U.S. 511 (1967).
But the “required records” exception does not operate where the subpoena is utilized as a pretext to investigate a group suspected of criminal activity unrelated to the governmental purpose of requiring the maintenance of those records or the regulation of that industry, then such compulsion may constitute an abuse of the Grand Jury.
Albertson v. Subversion Activities Control Board, 382 U.S. 70 (1965);
In re Grand Jury Proceeding (McCoy), 601 F.2d 162 (5th Cir. 1979).
U.S. v. Lehman, 887 F.2d 1328, 1333 (7th Cir. 1989) (stating “[i]f the Supreme Court in its landmark Fifth Amendment cases intended to disarm many of the regulatory enactments of the federal government, it would have addressed the question directly.”).
MUST HAVE “JURISDICTION” OVER CORPORATION
A grand jury may not subpoena corporate records of a corporation not subject to the jurisdiction of the district court empanelling that grand jury.
In re Sealed Cases, 832 F.2d 1268 (D.C. Cir. 1987) (holding that even though the court had jurisdiction over the “custodian” of those corporate records).
SOLE PROPRIETOR MAY RETAIN RIGHT TO INTERVENE AND PRECLUDE COMPELLED PRODUCTION OF RECORDS FROM EMPLOYEE
A sole proprietor may intervene to prevent an employee from producing records.
Couch v. U.S., 409 U.S. 322, 333 (1973);
In re Grand Jury Proceedings (Clinton Manges), 745 F.2d 1250, 1251 (9th Cir. 1984);
In re Grand Jury (Kent), 646 F.2d 963, 968-9 (5th Cir. 1981) (granting subpoena to “comptroller” of sole proprietorship quashed).
“The Government argues that access of an employee is all that is required. Hence, says the government, because Allen or some other employee could authenticate the records [the sole proprietor’s] testimonial compulsion is not implicated. That position, however, would swallow the privilege. Persons conducting business as sole proprietorships, under the government’s contended-for-rule, would lose the privilege before the grand jury the moment they hired any employee whose functions would require access to records.”
“The government insists on its right to use [employees] subpoena as a vehicle to obtain [the employer’s] records, thereby circumventing Kent’s exercise of his Fifth Amendment privilege. That reach, however, has been foreclosed. In Couch
- United States, 409 U.S. 322, 333, 93 S.Ct. 611, 618, 34
L.Ed.2d 548 (1973), as in Fisher v. U.S., 425 U.S. 391 (1976),
the Court was careful, in upholding a summons for records of which the accused had given up all possession, to distinguish situations ‘where constructive possession is so clear or the relinquishment of possession is so temporary and insignificant as to leave the personal compulsions upon the accused substantially intact’.
When the subpoena was served on Allen, she was the comptroller of Kent Oil. Although Kent hired employees to assist in the operation of his business, he never relinquished control of the records to any employee. That Allen had access to the records is irrelevant, for mere access is not possession, custody or control. Whether Kent be viewed as having clearly retained constructive possession, or as having relinquished possession to the temporary and insignificant extent necessary to enable his employees to perform their functions, delivery of his records in response to the Allen subpoena would ‘leave the personal compulsions upon [him] substantially intact’. Couch
- United States, 409 U.S. 322, 333 (1973). To hold that service on Allen meant an absence of personal compulsion upon Kent, would thus be to honor form over substance and to render meaningless Kent’s Fifth Amendment privilege.” In re Grand Jury (Kent), 646 F.2d 963, 968-69 (5th Cir. 1981).
But see In re Grand Jury (Colluggi), 597 F.2d 851 (3d Cir. 1979) (bookkeeper).
Not so if custody of records has been relinquished to another, non-employee off the employer’s premises.
Couch v. U.S., 409 U.S. 322 (1973) (accountant);
Fisher v. U.S., 425 U.S. 391 (1976) (attorney).
