NCJ Number
84920
Date Published
1980
Length
21 pages
Annotation
Defense counsel in resisting the production of business records should focus on whose business records are involved, the source of the compulsion to produce the business records, and whether the records are sought for testimonial or nontestimonial use.
Abstract
Since the privilege against self-incrimination is generally recognized as a personal privilege, a person can invoke it to prevent production of his/her own documents or papers, but it is not justified because of the possibility of incriminating other persons. Entities other than individuals, such as corporations or associations, are not protected from producing business records. Whether or not the privilege against self-incrimination can be invoked to resist producing business records also depends on whether the source of the compulsion to produce the records is (1) a subpoena or orders directed to defendants in criminal cases, (2) an order directed to civil litigants, (3) a search warrant, (4) an Internal Revenue Service summons, or (5) a grand jury inquiry. The law states that a wide variety of evidentiary materials, documents, samples, etc., may be seized from defendants and used against them as long as the evidence is not 'testimonial' in character. Thus, prosecutors will attempt to devise 'nontestimonial' excuses for document procurement. The defense attorney should be sensitive to the possible testimonial quality of records sought from the client. Applicable cases for the issues discussed are outlined.