The defendant owned several sole proprietorships. During a grand jury investigation of corruption, the grand jury served subpoenas on the defendant, seeking the production of voluntarily prepared business records of the sole proprietorships. The defendant moved to quash the subpoenas on two grounds. First, he claimed that the subpoenaed records were privileged under the Fifth Amendment. Second, he claimed that the act of producing the requested documents was privileged under the Fifth Amendment.
1. Whether voluntarily created business records are protected by the Fifth Amendment privilege against self-incrimination?
2. Whether the act of compelling the production of the requested business records is protected by the Fifth Amendment privilege against self-incrimination?
1. No. Business records that are voluntarily created are not protected by the Fifth Amendment privilege against self- incrimination as they were not compelled in their creation.
2. Yes. The act of compelling the production of requested business records (by subpoena) is protected by the Fifth Amendment privilege against self-incrimination.
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.
465 U.S. 605, 104 S. Ct. 1237 (1984)