NCJ Number
114971
Journal
FBI Law Enforcement Bulletin Volume: 57 Issue: 12 Dated: (December 1988) Pages: 17-21
Date Published
1988
Length
5 pages
Annotation
The fifth amendment serves as a bar to the introduction into evidence of the contents of a defendant's documents only in extremely limited circumstances.
Abstract
A defendant's fifth amendment right not to be compelled to produce a document is also quite narrow. U.S. Supreme Court decisions have restricted the reach of the fifth amendment protections for defendants. In Boyd vs. United States, the Court held that a court order directed at owners of property which was the subject of a forfeiture action commanding them to produce an invoice to be used in evidence against them violated their privilege against self-incrimination. In subsequent cases, the Court proceeded to limit in three significant ways the use of the fifth amendment privilege to prevent the admission of documents into evidence. First, the application of the privilege is restricted to documents of natural persons, thus denying the privilege to the records of collective entities such as corporations. Second, the privilege applicable to contents of documents has been limited to records, the creation of which has been compelled; thus denying the privilege in cases where documents have been voluntarily prepared. Finally, in cases where the preparation of documents of natural persons has been compelled by the Government, the application of privilege has been restricted to documents, the contents of which has been testimonial, thus, allowing a person to be compelled to prepare a document containing testimonial statements. Investigators in such cases may choose to use a search warrant to circumvent a fifth amendment claim. Where this is not a viable option, the court has suggested that the use of a statutory grant of immunity to bar the Government from presenting evidence that the defendant delivered the documents will eliminate the incriminating consequences of the act of production. 29 footnotes.