Fifth Amendment at trial

Georgetown Law Journal, Jun 1998 by Solomon, Matthew

The act of production doctrine does not necessarily protect the return of stolen goods, even if a conviction is under appeal. Compare U.S. v. Bryser, 954 F.2d 79, 90 (2d Cir. 1992) (production of stolen money not testimonial because defendants already convicted of crime and production would not be part of appellate record) with U.S. v. Duchi, 944 F.2d 391, 394 (8th Cir. 1991) (Fifth Amendment privilege continues until time for appeal has expired or until conviction affirmed upon appeal). 1935. See Fisher v. U.S., 425 U.S. 391, 411 (1976) (Fifth Amendment privilege does not apply to compelled production of papers when existence and location foregone conclusions); In re Grand Jury Subpoena Duces Tecum, 1 F.3d 87, 93 (2d Cir. 1993) (privilege does not apply to personal calendar when existence and location foregone conclusions and government could independently authenticate); U.S. v. Stone, 976 F.2d 909, 911 (4th Cir. 1992) (privilege does not apply to defendant's personal records because existence not in dispute and records could be authenticated by other means). 1936. See Baltimore City Dep't of Soc. Servs. v. Bouknight, 493 U.S. 549, 558-62 (1990) (although mother who was given custody of child pursuant to protective supervision order may not invoke Fifth Amendment privilege to resist producing the child, state may not make evidentiary use of testimonial aspects of producing child, such as admission of possession, existence, or identity of child).

1937. Braswell v. U.S., 487 U.S. 99, 109-10 (1988); see In re Grand Jury Subpoena, 973 F.2d 45, 46-47 (lst Cir. 1992) (Fifth Amendment did not permit trustee of nominee trust to refuse to produce trust records); In re Grand Jury Subpoenas, 959 F.2d 1158, 1163 (2d Cir. 1992) (Fifth Amendment did not permit custodian to refuse to produce corporate telephone records); U.S. v. Stone, 976 F.2d 909, 912 (4th

Cir. 1992) (per curiam) (Fifth Amendment did not permit individual who was sole shareholder, director, officer, and employee of corporation to refuse to produce corporate documents held in his representative capacity); In re Custodian of Records of Variety Distrib., Inc., 927 F.2d 244, 247-48 (6th Cir. 1991) (Fifth Amendment did not permit corporate officer to refuse to authenticate records of corporation for admission at trial because records held in representative, not individual capacity); In re Grand Jury Witnesses, 92 F.3d 710, 712 (8th Cir. 1996) (Fifth Amendment did not permit corporate officers to quash subpoenas for corporate documents relating to possible violations of the Clean Water Act); U.S. v. Blackman, 72 F.3d 1418, 1426-27 (9th Cir.) (Fifth Amendment did not permit defendant to refuse to produce documents pursuant to IRS summons even though act of producing documents incriminating because documents belonged to law firm and defendant, as partner, acted as corporate custodian of documents), cert. denied, 117 S. Ct. 275 (1996); U.S. v. Medlin, 986 F.2d 463, 467-68 (llth Cir. 1993) (Fifth Amendment did not permit custodian of corporate records to refuse to produce them or testify to their identification and authenticity); In re Sealed Case, 877 F.2d 83, 85-86 (D.C. Cir. 1989) (Fifth Amendment did not permit president of corporation deemed custodian of corporate records to refuse to produce them). But see In re Grand Jury Subpoena, 87 F.3d 1198, 1200 (llth Cir. 1996) (Fifth Amendment protected custodian of corporate documents not in possession of documents from testifying regarding location of documents when testimony would have been self-incriminating).