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48 U. Pitt. L. Rev. 27 (1986-1987)
Documents and the Privilege against Self-Incrimination

handle is hein.journals/upitt48 and id is 59 raw text is: DOCUMENTS AND THE PRIVILEGE AGAINST SELF-INCRIMINATIONt Samuel A. Alito, Jr. * This Article examines the new framework used by the Supreme Court in applying the fifth amendment privilege against self-incrimination to compulsory process for documens. In Fisher v. United States, the Supreme Court changed its prior analytical approach, enunciated in 1886 in Boyd v. United States. Boyd had held that an individual's private papers were absolutely protected by the privilege against self-incrimination from subpoenas for documents. Boyd's analysis concluded that a subpoena was analogous to a search and that a search for private papers legitimately owned by the person having possession was unreasonable because it would have constituted a trespass at common law. In contrast, the new approach enunciated in Fisher suggests that the contents of voluntarily prepared documents are never privileged under the fifth amendment; however, it indicates that the testimonial components of the act of producing those documents may be privileged. The Court restated this approach in United States v. Doe in 1984. Doe also indicated that act-of-production immunity may have to be granted to enforce a subpoena for personal records. This Article applies the new fifth amendment approach enunciated in Fisher and Doe to subpoenas for individual, institutional and required records. Under this approach, the fifth amendment does not protect the contents of any individual business or personal record However, when act-of-production immunity is granted after issuance of a subpoena for indi- vidual records, the testimonial component of the act ofproduction cannot be used against the individual complying with the subpoena. Such a grant of immunity could cause great and unforseen taint problems in certain situation Though governed by different rules than process for individual records, subpoenas for institutional records could also be affected by the new approach of Fisher and Doe. Gener- ally, institutional records have not been protected under the fifth amendment. The Supreme Court concluded that artificial entities do not have a fifth amendment privilege and that an individual's personal privilege should not interfere with production of those documents. Mr. Alito argues that the new analytical approach of Fisher and Doe does not necessitate major alteration of these rules. In order to minimize act-of-production problems, he contends, sub- poenas for institutional records should be directed to the artificial entity, and not to any particular individual The entity would select the person who turns over the documents and thus could often choose someone who would not be incriminated by the act of production. The required records doctrine, adopted in Shapiro v. United States, is also likely to be affected by Fisher and Doe. The required records doctrine states that the fifth amendment privilege against self-incrimination does not apply to records required to be kept by an individ- ual under government regulation. Under Fisher and Doe, an individual should be allowed to make a contemporaneous objection to the compulsory creation or organization of documents pursuant to a regulatory provision; if no objection is made, however, the fifth amendment will not protect the contents of those records if they are subsequently subpoenaed. As to any act- Copyright © 1986, Samuel A. Alito, Jr. * Deputy Assistant Attorney General, United States Department of Justice. A.B. 1972 Princeton; J.D. Yale 1975. The author was formerly with the Solicitor General's Office and in that capacity represented the Government in a few of the cases discussed in this Article. The views expressed in this Article, however, are solely those of the author.

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