United States v. Doe

The Fifth Amendment protects the defendant only from compelled self-incrimination. However, “where the preparation of business records is voluntary, no compulsion is present.” In other words, “if the party asserting the Fifth Amendment privilege has voluntarily compiled the document, no compulsion is present and the contents of the document are not privileged.”

While the contents of the subpoenaed business records are not privileged under the Fifth Amendment, the act of producing the records is privileged. By producing the documents requested in the subpoena, the defendant is admitting the document’s existence, that the defendant has possession or control over the document, and that the documents being turned over are authentic. These acts “may have testimonial aspects and an incriminating effect.” However, the government could compel the defendant to produce the documents by providing him with “use” immunity, pursuant to 18 U.S.C. §§ 6002-6003, or secure them through the use of a search warrant.