One of the most delicate tasks for the practitioner representing a witness or subject in a white-collar investigation is the tactical decision of whether to invoke the Fifth Amendment privilege against self-incrimination during the grand jury phase. This question can be even more complex in the case of grand jury subpoenas for documents. Two recent decisions by the United States Supreme Court, Ohio v. Reiner , 532 U.S. 17, 121 S.Ct. 1252 (2001), and United States v. Hubbell , 530 U.S. 27 (2000), indicate that its current members share, for the most part, an expansive view of the Self-Incrimination Clause. These decisions should be used aggressively during the grand jury stage whenever counsel needs to shield the client from having to testify or produce potentially incriminating documents.
The Fifth Amendment provides in pertinent part that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." A long-standing precept of Fifth Amendment jurisprudence is that the privilege applies to any statement that might tend to incriminate the witness. The statement at issue need not directly implicate the witness as long as it "furnish[es] a link in the chain of evidence needed to prosecute the claimant for a...crime." Hoffman v. United States , 341 U.S. 479, 486-87 (1951). Another venerable precedent holds that the privilege protects the innocent as well as the guilty. Grunewald v. United States , 353 U.S. 391 (1957). Reiner strikingly reaffirmed both principles in the context of an Ohio criminal trial. Though it did not pertain to a grand jury proceeding, Reiner can easily be applied in that context.
Matthew Reiner was charged with involuntary manslaughter for the death of his two-month old son Alex. Evidence established that the infant died from "shaken baby syndrome" resulting from child abuse and that the injury occurred minutes before Alex stopped breathing. Reiner was with the child during that time frame. (Evidence established that Alex's twin brother Derek suffered injuries as well.) Reiner maintained that Alex died earlier while in the care of babysitter Susan Batt. Reiner's experts testified that Alex may have been injured during the period that he was under Batt's care. At trial, the State called Batt to the stand. Batt invoked her Fifth Amendment privilege against self-incrimination and refused to testify, whereupon she was given transactional immunity and ordered to testify pursuant to Ohio Rev. Code Ann. § 2945.44. Batt testified that she had only demanded immunity on the advice of counsel and had in fact done nothing wrong. She denied any involvement in Alex's death and denied shaking him. She denied causing any of the injuries suffered by Alex or Derek. Reiner was convicted and appealed his conviction. The Supreme Court of Ohio reversed Reiner's conviction on the ground that Batt had no valid Fifth Amendment privilege against self-incrimination. The court held that Batt's testimony could not have incriminated her because she "denied any involvement in the abuse." The wrongful grant of immunity "prejudiced [Reiner] because it effectively told the jury that Batt did not cause Alex's injuries." The United States Supreme Court reversed, reaffirming that the Fifth Amendment privilege against self-incrimination "protects the innocent as well as the guilty," and that "the facts here are sufficient to sustain a claim of privilege." Riener, 121 S. Ct. at 1253.
In a per curiam opinion, the Court noted its longstanding precedent that the privilege extends not only "to answers that would in themselves support a conviction" but also to "those which would furnish a link in the chain of evidence needed to prosecute the claimant." Quoting Hoffman, the Court stressed that a potential witness need only show "from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Although the privilege extends to those witnesses who have "reasonable cause to apprehend danger from a direct answer," rather than to those who fear a danger of "imaginary and insubstantial character," and the inquiry on that issue is for the court, "we have never held, as the Supreme Court of Ohio did, that the privilege is unavailable to those who claim innocence. To the contrary, we have emphasized that one of the Fifth Amendment's 'basic functions . . . is to protect innocent men . . . who otherwise might be ensnared by ambiguous circumstances.' Grunewald v. United States , 353 U.S. 391, 421." (internal quotations omitted). Reiner, at 1254.
According to the Court, Batt had reasonable cause to fear danger from her truthful answers since she spent extended periods of time with Alex and his brother in the weeks prior to the discovery of their injuries and she was with Alex within one potential time frame of his death. The defense theory was that she caused the injuries and death. "In this setting it was reasonable for Batt to fear that answers to possible questions might tend to incriminate her." Reiner, at 1255.
This short, seemingly offhand reaffirmation of prior precedent has potential significance for criminal defense practitioners. As a practical matter, it is already extremely difficult for the Government to disprove a witness' claim to Fifth Amendment protection. Though a court may ultimately decide whether the claimant's fear of incrimination is substantial, it is axiomatic that the claimant does not have to spell out the reasons for this fear in any great detail. To do so would defeat the very purpose of the privilege by revealing the incriminating facts. Reiner should make it even more difficult to challenge the witness' invocation of the self-incrimination privilege and should be freely invoked at the grand jury stage of criminal investigations. While the grand jury witness in Grunewald proclaimed his innocence, even while invoking the privilege, it was clear that the prosecutor and grand jury considered him a target. Susan Batt's fear of self-incrimination, however, was only real in relation to defendant Matthew Reiner's theory of the case. Ohio had already indicated who it considered the real murderer to be through its indictment of Reiner. (Nothing in the Court's opinion indicates that Batt was ever suspected of the crime or of aiding and abetting Reiner.) The Court held that her fear of danger was reasonable primarily, if not entirely, because the defense professed to believe in her guilt. It is hard to imagine a more expansive view of what may constitute an incriminatory communication. This takes on added significance in light of the previous term's decision in Hubbell , in which the Court gave a dramatically expansive interpretation of the immunity afforded to the "act of producing" documents to the grand jury under a statutory grant of immunity.
Before examining Hubbell and considering its full import, it may be useful to survey some of the prior Supreme Court case law relating to statutory and "act of production" immunity. In Brown v. Walker, 161 U.S. 591 (1896), the Court first held that statutory grants of immunity were consistent with the history and purposes of the Fifth Amendment. As long as the statutory grant of immunity put the witness in the same position he would have been in had he exercised the privilege against self incrimination, the Self-Incrimination Clause would not be offended. The statutory immunity at issue in Brown was transactional in nature. That is, a witness granted immunity under the statute could never be prosecuted for the transaction about which he was testifying. For many years after Brown it was assumed that only transactional immunity could pass constitutional muster. The Court put this notion to rest in Kastigar v. United States, 408 U.S. 931 (1972), by upholding a grant of derivative-use immunity provided under 18 U.S.C. § 6002, a statute passed by Congress in 1970. Under the terms of § 6002, when a witness testifies pursuant to court-ordered statutory immunity, "no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order." The Kastigar majority held that strict enforcement of these statutory terms would put a witness in the same position as one claiming the privilege. The Court made clear that the Government bore the burden of showing that the testimony it did use at trial was wholly independent of both the immunized testimony and any derivative fruits of such testimony. We shall keep the bedrock principles of Kastigar in mind as we explore the growth of the "act of production" doctrine.
The first United States Supreme Court case applying the Self-Incrimination Clause to the compelled production of documents was Boyd v. United States , 116 U.S. 616 (1886), in which the Court held that the Fifth Amendment protected a party from compelled production of private books and papers. In Boyd , the Government brought a civil forfeiture proceeding against two business partners for fraudulently attempting to import goods without paying the duty. By court order, the partners were required to produce a shipping invoice. At trial, they produced the invoice but later appealed its compelled production on both Fourth and Fifth Amendment grounds. The Court agreed with the partners, held that the invoice was inadmissible and stated that "a compulsory production of the private books and papers of the owner of goods sought to be forfeited . . . is compelling him to be a witness against himself, within the meaning of the Fifth Amendment of the Constitution." Id. at 634-635.
Many aspects of the Boyd holding were limited by the Court over the next 89 years. For example, the privilege was held not to apply to corporations and other collective entities, such as partnerships and labor unions, or to the production of papers required by the Government to be kept for regulatory purposes. Nevertheless, the notion that the Fifth Amendment protected against compelled production of the contents of most private papers remained the law at least until 1976 when the Supreme Court decided Fisher v. United States , 425 U.S. 391 (1976). In Fisher , which involved two originally separate cases later consolidated by the Court, two taxpayers were under investigation for possible civil or criminal liability under the federal tax laws. Each taxpayer was a sole proprietor. Following visits by IRS investigators, the taxpayers retrieved from their respective accountants certain accountant work papers relating to the preparation by their accountants of the taxpayers' returns. Shortly thereafter, each taxpayer transferred the documents to his respective attorney. The IRS discovered this and issued summonses to the attorneys seeking the documents in question. The taxpayers argued that enforcement of the summonses would involve compulsory self-incrimination in violation of their Fifth Amendment privilege. The Court disagreed, first determining that enforcement of the summonses would not require the taxpayer to actually do anything and therefore, that the taxpayer would not be "compelled" to be a witness against himself. Further, the attorney's status as an agent of the taxpayers did not change the result, as far as the taxpayers' Fifth Amendment privileges were concerned. However, "[s]ince each taxpayer transferred possession of the documents in question from himself to his attorney, in order to obtain legal assistance in the tax investigations in question, the papers, if unobtainable by summons from the client, are unobtainable by summons directed to the attorney by reason of the attorney-client privilege." Fisher, at 405. Thus, the question became whether a subpoena or summons directing a taxpayer to turn over the accountant's workpapers in the taxpayer's possession violated the taxpayer's Fifth Amendment privilege against self-incrimination.
Before answering that specific question, the Court embarked on an extensive discussion of Boyd (since "[t]he proposition that the Fifth Amendment prevents compelled production of documents over objection that such production might incriminate stems from Boyd "), remarking along the way that "[s]everal of Boyd's express or implicit declarations have not stood the test of time." Id. at 407. For example, it was "clear that the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating." Id. at 408. The Court ultimately concluded that "the prohibition against forcing the production of private papers has long been a rule searching for a rationale consistent with the proscriptions of the Fifth Amendment against compelling a person to give 'testimony' that incriminates him." Id. at 409.
Turning to the case before it, the Court conceded that requiring a taxpayer to produce his accountant's workpapers through a summons involves some compulsion. It does not, however, compel oral testimony or require the taxpayer to "restate, repeat, or affirm the truth of the contents of the documents sought." Id. The Fifth Amendment, therefore, is not violated even if the papers incriminate the taxpayer, because the Self- Incrimination Clause only protects against compelled "testimonial" incrimination. The Court stressed that an accountant's workpapers do not belong to the taxpayer, are not prepared by the taxpayer, and contain none of the taxpayer's testimonial declarations. In the case before it, moreover, the workpapers had been voluntary prepared and therefore did not contain anyone's "compelled" testimony.
The Court recognized that the general act of producing documents in response to a subpoena has communicative aspects of its own quite apart from the papers' contents and that compliance may equate to a concession of the existence of documents and possession by the individual producing them. "Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. It would also indicate the taxpayer's belief that the papers are those described in the subpoena." Id. at 410. Thus was born the "act of production" doctrine. However, under the particular facts in Fisher , the Court determined that the taxpayers' tacit averments as to existence and possession of the documents were neither testimonial nor incriminating. The averments were not testimonial because the papers belonged to the accountants and the Government was not relying on the taxpayers to prove the papers' existence or their access to them. The existence and possession of the documents were a "foregone conclusion" and the taxpayers added nothing to the Government's knowledge by conceding that they possessed them. Here the question was not one of testimony, but rather surrender. Thus was born the "foregone conclusion" exception to the "act of production" doctrine. Even assuming that the taxpayers' averments as to existence or possession had some minimal testimonial significance they were not incriminating, because it is not illegal to seek accounting help with a tax return or to have the accountant prepare and deliver one's workpapers. Though the Court refused to rule on whether the Fifth Amendment shielded the taxpayer from producing his own tax records in his own possession, the death knell for Boyd appeared to be certain. Fisher's narrow view of the "act of production" doctrine as well as its creation of what seemed to be a broad "foregone conclusion" exception were highly dependent on the peculiar facts of that case, although this was perhaps insufficiently understood at the time. (For example, in Fisher the Government knew that the attorneys possessed the documents and could confirm existence and authenticity through the accountants.) The "act of production" doctrine received little attention in the lower federal courts over the next several years. The issue was revisited, however, and the "act of production" doctrine reaffirmed by the Court, in United States v. Doe , 465 U.S. 605 (1984) (" Doe I ").
In Doe I , the Court, recognizing that a compelled act of production could invoke Fifth Amendment protection, stated "[a]lthough the contents of a document may not be privileged, the act of producing the document may be . . . . A government subpoena compels the holder of the document to perform an act that may have testimonial aspects and an incriminating effect." Id. at 612. Specifically, the Court found that the act of producing subpoenaed documents could involve testimonial incrimination as to the existence, possession, or authentication of the requested documents.
In Doe I , the Government was investigating corruption in the awarding of business contracts and issued five subpoenas seeking several broad categories of business records from a sole proprietor. The owner successfully sought to quash the subpoenas and the Supreme Court refused to disturb the factual findings of the District Court, affirmed by the Third Circuit, that the act of producing the documents in question was privileged, because it involved potential testimonial incrimination. The Court affirmed entirely on the basis of the "act of production" doctrine, rejecting the Third Circuit's alternative holding that the contents of a sole proprietor's documents are privileged. The Court applied Fisher's rationale to this question and appears to have killed off Boyd for good. (The Court has yet to rule, however, that the contents of purely private personal non-business papers are unprotected under the Fifth Amendment.) While conceding the existence of the "foregone conclusion" doctrine, the Court agreed that it did not help the Government under the facts of Doe I , primarily because the Government failed to rebut Doe's assertion that he had never conceded the existence or possession of the requested documents.
The Government had repeatedly offered not to use Doe's act of production against him, but the Court rejected this "constructive use" immunity, noting that the Government was required to obtain statutory court-ordered immunity pursuant to § 6002-0003 in order to compel the act of production and that it easily could have done so. This point was of some significance, since the immunity offered by § 6002 is the same broad derivative-use immunity approved as constitutional in Kastigar.
It is against this backdrop that the Court reviewed Hubbell . Independent Counsel Kenneth Starr served respondent Webster Hubbell (who was then incarcerated as a result of his guilty plea to mail fraud and tax fraud charges) with a subpoena duces tecum "calling for the production of 11 categories of documents before a grand jury sitting in Little Rock, Arkansas." Hubbell , 530 U.S. at 31. Hubbell invoked his Fifth Amendment privilege against self-incrimination before the grand jury. He refused to produce the documents and refused "to state whether there are documents within my possession, custody, or control responsive to the Subpoena." Id. Acting pursuant to 18 U.S.C. § 6003(a), the United States District Court directed Hubbell to respond to the subpoena and granted Hubbell immunity to the extent allowed by 18 U.S.C. § 6002. Hubbell produced 13,120 pages of documents and records and answered questions establishing that these were "all of the documents in his custody or control that were responsive to the commands in the subpoena." Id. The contents of Hubbell's produced documents gave the Independent Counsel information that ultimately led to a second prosecution of Hubbell. The United States District Court for the District of Columbia dismissed the second indictment "relying, in part, on the ground that the Independent Counsel's use of the subpoenaed documents violated § 6002 because all of the evidence he would offer against respondent at trial derived either directly or indirectly from the testimonial aspects of respondent's immunized act of producing those documents." Id. at 32.
The United States Court of Appeals for the District of Columbia vacated the judgment and remanded for further proceedings. "The majority concluded that the District Court had incorrectly relied on the fact that the Independent Counsel did not have prior knowledge of the contents of the subpoenaed documents." Id. The proper standard instead "was the extent of the Government's independent knowledge of the documents' existence and authenticity, and of respondent's possession or control of them." Id. The Court of Appeals held that "[s]hould the Independent Counsel prove capable of demonstrating with reasonable particularity a prior awareness that the exhaustive litany of documents sought in the subpoena existed and were in Hubbell's possession, then the wide distance evidently traveled from the subpoena to the substantive allegations contained in the indictment would be based upon legitimate intermediate steps." Id. at 33. In dissent, Judge Stephen Williams distinguished "between the contents of the documents and the limited testimonial significance of the act of producing them." Id. He felt that the prosecutor should be allowed to "make use of information contained in the documents or derived therefrom" as long as the prosecutor could do so "without any reference to the fact that respondent had produced them in response to a subpoena." Id. In William's view, "act of production" immunity only protected "the witness from the use of any information resulting from his subpoena response 'beyond what the prosecutor would receive if the documents appeared in the grand jury room or in his office unsolicited and unmarked, like manna from heaven.'" Id. Upon remand, the Independent Counsel (acknowledging his inability to satisfy the "reasonable particularity" standard of the Court of Appeals) entered into a conditional plea with Hubbell. The agreement provided for dismissal of the charges against Hubbell unless the Supreme Court's "disposition of the case makes it reasonably likely that respondent's 'act of production immunity' would not pose a significant bar to his prosecution." Id. at 34. The agreement provided "for the entry of a guilty plea and a sentence that will not include incarceration" if the Supreme Court should reverse and issue an opinion that is sufficiently favorable to the government "to satisfy that condition." Id.
The Court held that it had "no doubt that the constitutional privilege against self incrimination protects the target of a grand jury investigation from being compelled to answer questions designed to illicit information about the existence of sources of potentially incriminating evidence. That constitutional privilege has the same application to the testimonial aspect of a response to a subpoena seeking discovery of those sources." Id. at 43. Moreover, " Kastigar226128166 requires that respondent's motion to dismiss the indictment on immunity grounds be granted unless the Government proves that the evidence it used in obtaining the indictment and proposed to use at trial was derived from legitimate sources 'wholly independent' of the testimonial aspect of respondent's immunized conduct in assembling and producing the documents described in the subpoena." Id. at 45. Since the United States conceded that it could not make such a showing, the indictment had to be dismissed and the judgment of the Court of Appeals affirmed.
The Court, per Justice Stevens, initially stressed that "[t]he word 'witness' in the constitutional test limits the relevant category of compelled incriminating communications to those that are 'testimonial' in character." Id. at 34. (Thus, criminal suspects may be forced to put on shirts, provide blood samples, give handwriting exemplars or make voice recordings because these acts, although incriminating, are not testimonial in nature.) Citing Fisher, Stevens noted that "a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not 'compelled' within the meaning of the privilege." Id. at 35-36. Hubbell, therefore, "could not avoid compliance with the subpoena served on him merely because the demanded documents contained incriminating evidence, either written by others or voluntarily prepared by himself." Id. at 36. Nevertheless, "the act of producing documents in response to a subpoena may have a compelled testimonial aspect." Id. The "act of production" may itself implicitly communicate "statements of fact." Id. When producing documents in response to a subpoena, "the witness . . . admit[s] that the papers existed, are in his possession or control, and were authentic." Id. Additionally, "as was true in this case, when the custodian of documents responds to a subpoena, he may be compelled to take the witness stand and answer questions designed to determine whether he has produced everything demanded by the subpoena. The answers to those questions, as well as the act of production itself, may certainly communicate information about the existence, custody, and authenticity of the documents. Whether the constitutional privilege protects the answers to such questions, or protects the act of production itself, is a question that is distinct from the question whether the unprotected contents of the documents themselves are incriminating." Id. at 37. Stevens also referenced the Court's long settled doctrine that Fifth Amendment "protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not introduced into evidence." Id. Stevens cited Hoffman's "link in the chain" language and noted that "[i]t is the Fifth Amendment's protection against the prosecutor's use of incriminating information derived directly or indirectly from the compelled testimony of the respondent that is of primary relevance in this case." Id. at 38.
Justice Stevens remarked that the federal court in Arkansas acted pursuant to 18 U.S.C. § 6002 when it entered the "order compelling respondent to produce 'any and all documents' described in the grand jury subpoena and granting him 'immunity to the extent allowed by law.'" Id. Justice Stevens stressed the key point that in Kastigar , the Court "upheld the constitutionality of § 6002 because the scope of the 'use and derivative-use' immunity that it provides is co-extensive with the scope of the constitutional privilege against self-incrimination." Id. In Kastigar , the Court had "particularly emphasized the critical importance of protection against a future prosecution 'based on knowledge and sources of information obtained from the compelled testimony.'" Id. The Kastigar Court, moreover, had "concluded that a person who is prosecuted for matters related to testimony he gave under a grant of immunity, does not have the burden of proving that his testimony was improperly used. Instead, we held that the statute imposes an affirmative duty on the prosecution, not merely to show that its evidence is not tainted by the prior testimony, but 'to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.'" Id. at 40.
The Independent Counsel maintained that he would not have to mention Hubbell's act of production in order to prove the existence, authenticity, or custody of any of his documents at trial. The Independent Counsel also assured the Court that he would not even need to introduce into evidence any of the documents produced by Hubbell. The Court majority found these points irrelevant. "It is apparent from the text of the subpoena itself that the prosecutor needed respondent's assistance both to identify potential sources of information and produce those sources. . . . Given the breadth of the description of the 11 categories of documents called for by the subpoena, the collection and production of the materials demanded was tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions. The assembly of literally hundreds of pages of material . . . is the functional equivalent of the preparation of an answer to either a detailed written interrogatory or a series of oral questions at a discovery deposition. Entirely apart from the contents of the 13,120 pages of materials that respondent produced in this case, it is undeniable that providing a catalog of existing documents fitting within any of the 11 broadly worded subpoena categories could provide a prosecutor with a 'lead to incriminating evidence,' or 'a link in the chain of evidence needed to prosecute.'" Id. at 41-42.
The Court, in short, rejected " the Government's submission that respondent's immunity did not preclude its derivative use of the produced documents because its 'possession of the documents[was] the fruit only of a simple physical act -- the act of producing the documents' . . . It was unquestionably necessary for respondent to make extensive use of 'the contents of his own mind' in identifying the hundreds of documents responsive to the requests in the subpoena. . . . The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strong box." Id. at 43.
The Court likewise rejected the Government's contention that Hubbell's "act of production" was insufficiently testimonial "because the existence and possession of such records by any business man is a 'foregone conclusion' under our decision in Fisher . . ." Id. at 44. In Fisher , the IRS unquestionably knew that the working papers it sought were in existence and in the custody of the taxpayer's attorney. Moreover, the papers could be independently authenticated through the taxpayer's accountant. Here, by way of the contrast, "the Government has not shown that it had any prior knowledge of either the existence or the whereabouts of the 13,120 pages of documents ultimately produced by the respondent." Id. at 45. Thus, "[w]hatever the scope of this 'foregone conclusion' rationale, the facts of this case plainly fall outside of it." Id. at 44.
In short, Hubbell's act of producing the subpoenaed documents pursuant to an immunity order and of answering the standard custodial questions as to whether he had produced all of the requested documents, fell squarely within the ambit of Kastigar . Accordingly, the Government would have to meet the stringent Kastigar test in order to proceed to trial. This the Government was, by its own admission, unable to do.
It is important to note that while the Hubbell decision expands the contours of the act of production doctrine, it does not stand for the proposition that a witness may never be compelled to produce potentially incriminating documents or that he may never be prosecuted if he does so under a grant of immunity. Fisher, Doe I, and Hubbell together teach that a narrowly drawn subpoena particularly describing a specific document whose existence, location, and/or authenticity the Government is independently aware of may very well fall under the 'foregone conclusion" doctrine. Moreover, if a third party voluntarily created the documents and the subpoenaed witness is now in possession, the Government should be able to establish in most instances that the act of producing said documents is not incriminatory.
The key to Hubbell primarily lies in its explicit holding that "act of production" immunity is subject to the full protection of the Kastigar standard. The Court ruled that a prosecutor who compels an act of production through §6002 derivative-use immunity and later seeks to prosecute the immunized individual must establish that the subsequent prosecution is derived from legitimate sources wholly independent of both the immunized act of production and any information (presumably including the contents of the subpoenaed documents) directly or indirectly derived from such production. This will usually be a difficult standard to meet. Another important element of Hubbell is its reaffirmation of Hoffman in the context of the production of documents before a grand jury. As previously noted, the Court rendered an equally strong reading of Hoffman (as well as Grunewald ) in last term's Reiner opinion.
Hubbell and Reiner can be powerful arsenals in the hands of alert defense counsel. No attorney should ever let a client with criminal exposure appear before the grand jury pursuant to a subpoena ad testificandum or a subpoena duces tecum without court-ordered statutory immunity pursuant to §6002-03. These cases provide the authority to support such a strategy.
The "act of production" immunity for individuals that we have been discussing should not be confused with the much more limited protection created by the Supreme Court for individual document custodians of collective entities. It will be recalled that the privilege against self-incrimination does not apply to corporations or other collective entities. In Braswell v. United States, 487 U.S. 99 (1988), the Court made clear that a corporate custodian, even a sole shareholder, can be forced to produce documents in response to a subpoena served on the collective entity. It is irrelevant for Fifth Amendment purposes whether the subpoena is directed to the corporation or to the individual in his capacity as corporate custodian. Since the individual holds his position in a representative capacity, and since collective entities can only operate through their agents, the custodian is appearing in his corporate capacity. This is an obligation he undertakes when he assumes the role of custodian. Braswell only dealt with a subpoena duces tecum, which by definition does not call for testimony. Moreover, Braswell was offered the opportunity to deliver the documents outside of the grand jury context. (He was not, however, allowed to designate a different custodian with insufficient knowledge of the corporate records.) To offer some limited protection to the individual corporate custodian, since he is theoretically acting in a representative capacity, the Braswell Court created an evidentiary bar to Government use of his "individual act" of production. In a criminal case against the custodian, for example, the Government may not introduce evidence that the subpoena was served upon or responded to by that custodian. The Court emphasized that the protection it was offering was limited and in no way constituted derivative-use immunity.
The Court has never explicitly held that the individual corporate custodian must answer questions if those answers would tend to incriminate him. In fact, the Court has held that the corporate custodian cannot be compelled in the absence of an immunity grant "to condemn himself by his own oral testimony." Curcio v. United States, 354 U.S. 118, 123-24 (1957). The Court, however, has strongly hinted, in cases such as Braswell and Curcio , that the individual corporate custodian must answer basic and very limited authentication and identification questions. The theory behind requiring such testimony is that it adds little or nothing more to the inherently testimonial act of producing the documents in response to the subpoena. Individual federal circuits have responded in differing ways to this oral testimonial aspect of Curcio and Braswell. As a general proposition, the practitioner should fight to keep a corporate custodian with exposure from having to respond to a corporation subpoena. If forced to attend the grand jury, the custodian should resist all efforts to provide any oral testimony beyond the bare minimum required under Curcio, Braswell, and the law of the circuit.