NCJ Number
51240
Date Published
Unknown
Length
5 pages
Annotation
JUDICIAL DECISIONS AFFECTING THE EVOLUTION OF THE LEGAL STRUCTURE ASSOCIATED WITH OBTAINING BUSINESS RECORDS ARE DISCUSSED, AND PROCEDURES FOR USING BUSINESS RECORDS IN CASE DEVELOPMENT ARE DESCRIBED.
Abstract
THE SEARCH WARRANT AND THE SUBPOENA ARE TWO METHODS FOR OBTAINING FINANCIAL RECORDS CRUCIAL IN THE DEVELOPMENT OF ASSOCIATED CRIMINAL CASES. THE SEARCH WARRANT IS FREQUENTLY IMPRACTICAL BECAUSE 'PROBABLE CAUSE' OFTEN DOES NOT EXIST IN FINANCIAL CRIME CASES UNTIL RECORDS HAVE BEEN EXAMINED. THE ISSUING OF A SUBPOENA IS A COMPLEX MATTER BECAUSE THE PROSCRIPTION AGAINST SELF-INCRIMINATION EXTENDS TO BOTH INDIVIDUAL TESTIMONY AND PRIVATE PAPERS. THE CONVERGENCE THEORY, WHICH ORIGINATED WITH THE U.S SUPREME COURT CASE OF BOYD VERSUS UNITED STATES, 116 U.S. 616 (1886), HOLDS THAT BOTH SUBPOENAS AND SEARCH WARRANTS RELATIVE TO PRIVATE PAPERS INVOLVE SUFFICIENT COMPULSION TO INVOKE THE FIFTH AMENDMENT PROTECTION. IN HALE VERSUS HENKEL, 201 U.S 43 (1905), THE COURT HELD, HOWEVER, THAT THE FIFTH AMENDMENT PRIVILEGE ONLY APPLIED TO INDIVIDUALS AND NOT TO CORPORATIONS. THUS, CORPORATION RECORDS BECAME AVAILABLE THROUGH SEARCH WARRANTS AND SUBPOENAS. IN BELLIS VERSUS UNITED STATES 417 U.S. 85 (1974), THE SUPREME COURT HELD THAT BUSINESS RECORDS OF ANY ORGANIZATION ARE NOT SUBJECT TO FIFTH AMENDMENT PRIVILEGES. IN THE AREA OF OBTAINING RECORDS OF PRIVATE PERSONS, THE USE OF THE SEARCH WARRANT AND SUBPOENA IS EVEN MORE CONFUSING. JUDICIAL DECISIONS APPARENTLY PERMIT THE USE OF SEARCH WARRANTS (ASSUMING PROBABLE CAUSE) TO OBTAIN RECORDS, PROVIDING NO COMPULSION IS USED TO OBTAIN SUCH RECORDS. THE USE OF SUBPOENAS ON THE OTHER HAND IS STILL AN UNCERTAIN AREA, PARTICULARLY REGARDING BANK RECORDS, SINCE COMPULSION AND THUS A VIOLATION OF SELF-INCRIMINATION PRIVILEGES IS APPARENTLY INVOLVED. PROCEDURES FOR OBTAINING RECORDS AND USING THEM AT TRIAL ARE SPECIFIED. (RCB)