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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
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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