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rockslammer
08-03-2006, 05:37 PM
U.S. Supreme Court BOYD v. U S, 116 U.S. 616 (1886)

AJ give this one a read. It just may be pivotal. The issues are strikingly similar notwithstanding actual subpoena. Circumventing subpoena or warrant by statute will not withstand scrutiny either IMHO -- what's yours?

http://www.vlex.us/caselaw/U-S-Supreme-Court/Boyd-v-United-States-116-U-S-616-1886/2100-20064059%2C01.html




And any compulsory discovery by extorting the party's oath, or compelling the production of his

[Page 116 U.S. 616, 632]

private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power, but it cannot abide the pure atmosphere of political liberty and personal freedom.


The fourth amendment says: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.'

[Page 116 U.S. 616, 641]

The things here forbidden are two: search and seizure. And not all searches nor all seizures are forbidden, but only those that are unreasonable. Reasonable searches, therefore, may be allowed, and if the thing sought be found, it may be seized. But what search does this statute authorize? If the mere service of a notice to produce a paper to be used as evidence, which the party can obey or not as he chooses, is a search, then a change has taken place in the meaning of words, which has not come within my reading, and which I think was unknown at the time the constitution was made. The searches meant by the constitution were such as led to seizure when the search was successful. But the statute in this case uses language carefully framed to forbid any seizure under it, as I have already pointed out.

A.J. Comparetto
08-05-2006, 01:59 PM
U.S. Supreme Court BOYD v. U S, 116 U.S. 616 (1886)

AJ give this one a read. It just may be pivotal. The issues are strikingly similar notwithstanding actual subpoena. Circumventing subpoena or warrant by statute will not withstand scrutiny either IMHO -- what's yours?

http://www.vlex.us/caselaw/U-S-Supreme-Court/Boyd-v-United-States-116-U-S-616-1886/2100-20064059%2C01.html






I am delighted you have posted this question. Late last year, I posted some comments on a Tennessee federal district court's decision regarding the 5th amendment's act of production privilege and 2257. I also made reference to a 1996 US Court of Appeals for the Eleventh Circuit decision regarding the 5th amendment, the act of production privilege, and how those protections relate to someone who might be considered to be a custodian of records for a "collective entity", such as a corporation. Check out what I posted and let me know what you think.

My personal opinion (shared by US Supreme Court Justices Antonin Scalia and Clarence Thomas) is that BOYD has never been overruled by the high court. In my humble view, BOYD is still very much good law, and every one of us have the protections of the 4th as well as the 5th amendment. Along these lines, you may wish to consider Justices Scalia's and Thomas's concurring opinion in United States v. Hubbell, 530 U. S. 27 (2000). http://supreme.justia.com/us/530/27/case.html

You may also wish to review the some of the following commentaries on the Hubbell decision and whether it signals the resurrection of BOYD.

http://library.findlaw.com/2005/Jan/19/147944.html

http://home.hiwaay.net/~becraft/Compulsory.htm

http://www.swansonmcnamara.com/articles/print/9-fifth_hubbell.html

http://law.richmond.edu/jolt/v7i4/article1.html

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=179689

http://www.lawtechjournal.com/articles/2004/02_040413_clemens.pdf

http://boalt.org/outlines/CrimPro/CrimPro_Sklansky_04Fall.doc

http://www.law.ufl.edu/faculty/publications/pdf/subpoenaprivacy.pdf

http://www.rkmc.com/Corporate-Citizenship-and-Corporate-Criminal-Rights.htm

http://www.lawprofessorblogs.com/whitecollar/linkdocs/cole5amend.pdf

http://www.tjtaxlaw.com/20021100%20Campagna%20et%20al%20Oultline%20on%20Re presentation%20Client%20in%20Criminal%20Investigat ion%20(TJ138).pdf

http://www.vlex.us/constitution/Constitution-of-the-United-States-Annotated/Fifth-Amendment-Rights-Of-Persons/2100-295480,01.html

http://www.fpdnj.org/pdf/defending%20a%20federal%20criminal%20case.pdf

Check it out and let me know what you think.

A.J. Comparetto
08-05-2006, 03:52 PM
I am delighted you have posted this question. Late last year, I posted some comments on a Tennessee federal district court's decision regarding the 5th amendment's act of production privilege and 2257. I also made reference to a 1996 US Court of Appeals for the Eleventh Circuit decision regarding the 5th amendment, the act of production privilege, and how those protections relate to someone who might be considered to be a custodian of records for a "collective entity", such as a corporation. Check out what I posted and let me know what you think.

My personal opinion (shared by US Supreme Court Justices Antonin Scalia and Clarence Thomas) is that BOYD has never been overruled by the high court. In my humble view, BOYD is still very much good law, and every one of us have the protections of the 4th as well as the 5th amendment. Along these lines, you may wish to consider Justices Scalia's and Thomas's concurring opinion in United States v. Hubbell, 530 U. S. 27 (2000). http://supreme.justia.com/us/530/27/case.html

You may also wish to review the some of the following commentaries on the Hubbell decision and whether it signals the resurrection of BOYD.

http://library.findlaw.com/2005/Jan/19/147944.html

http://home.hiwaay.net/~becraft/Compulsory.htm

http://www.swansonmcnamara.com/articles/print/9-fifth_hubbell.html

http://law.richmond.edu/jolt/v7i4/article1.html

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=179689

http://www.lawtechjournal.com/articles/2004/02_040413_clemens.pdf

http://boalt.org/outlines/CrimPro/CrimPro_Sklansky_04Fall.doc

http://www.law.ufl.edu/faculty/publications/pdf/subpoenaprivacy.pdf

http://www.rkmc.com/Corporate-Citizenship-and-Corporate-Criminal-Rights.htm

http://www.lawprofessorblogs.com/whitecollar/linkdocs/cole5amend.pdf

http://www.tjtaxlaw.com/20021100%20Campagna%20et%20al%20Oultline%20on%20Re presentation%20Client%20in%20Criminal%20Investigat ion%20(TJ138).pdf

http://www.vlex.us/constitution/Constitution-of-the-United-States-Annotated/Fifth-Amendment-Rights-Of-Persons/2100-295480,01.html

http://www.fpdnj.org/pdf/defending%20a%20federal%20criminal%20case.pdf

Check it out and let me know what you think.
I have "Googled" the citation (368 F Supp 2d 846) of the Tennessee federal district court decision I commented on late last year, and here are the results: http://www.google.com/search?q=%22368+f+supp+2d+846%22&num=100&hl=en&lr=&filter=0

I have also "Googled" the citation of the US Court of Appeal's 1996 decision in the case of In re Grand Jury Subpoena Dated April 9, 1996, 87 F. 3d 1198 (11th. Cir. 1996), and here are the results: http://www.google.com/search?q=%2287+f+3d+1198%22&num=100&hl=en&lr=&filter=0

A.J. Comparetto
08-05-2006, 04:01 PM
I have "Googled" the citation (368 F Supp 2d 846) of the Tennessee federal district court decision I commented on late last year, and here are the results: http://www.google.com/search?q=%22368+f+supp+2d+846%22&num=100&hl=en&lr=&filter=0

I have also "Googled" the citation of the US Court of Appeal's 1996 decision in the case of In re Grand Jury Subpoena Dated April 9, 1996, 87 F. 3d 1198 (11th. Cir. 1996), and here are the results: http://www.google.com/search?q=%2287+f+3d+1198%22&num=100&hl=en&lr=&filter=0
I have "Google" the following search terms: "boyd" "fisher" "doe" "hubbell" "act of production".....here are the results: http://www.google.com/search?q=%22boyd%22+%22fisher%22+%22doe%22+%22hubb ell%22+%22act+of+production%22&num=100&hl=en&lr=&filter=0

I have also "Googled" the term "act of production".....with the following results:http://www.google.com/search?num=100&hl=en&lr=&q=%22act+of+production+immunity%22&btnG=Search

Please note especially this link to Professor Peter J. Henning's commentary: http://lawprofessors.typepad.com/whitecollarcrime_blog/2006/07/was_it_manna_fr.html

A.J. Comparetto
08-05-2006, 04:04 PM
I have "Google" the following search terms: "boyd" "fisher" "doe" "hubbell" "act of production".....here are the results: http://www.google.com/search?q=%22boyd%22+%22fisher%22+%22doe%22+%22hubb ell%22+%22act+of+production%22&num=100&hl=en&lr=&filter=0

I have also "Googled" the term "act of production".....with the following results:http://www.google.com/search?num=100&hl=en&lr=&q=%22act+of+production+immunity%22&btnG=Search

Please note especially this link to Professor Peter J. Henning's commentary: http://lawprofessors.typepad.com/whitecollarcrime_blog/2006/07/was_it_manna_fr.html
Here is Professor Henning's commentary (link to it here:http://lawprofessors.typepad.com/whitecollarcrime_blog/2006/07/was_it_manna_fr.html):

July 25, 2006
Was it "Manna from Heaven?"
Perhaps one of the most complicated areas of the law to understand is "act of production" when confronted with an immunity grant. How far can the government go in indicting a person when materials received from the individual were obtained pursuant to a grant of immunity?

A recent decision of the U.S. D.C. Circuit Court (United States v. Ponds) tackles this issue in a case involving a criminal defense attorney who was convicted of tax evasion, wire fraud, and fraud in the first degree in D.C. The case is the sad story of a criminal defense attorney who allegedly received a white 1991 Mercedes 500SL and failed to inform the court of the whereabouts of the automobile for forfeiture purposes. The accused was granted act-of-production immunity under 18 U.S.C. s 6002. Once granted the act-of-production immunity he appeared before the grand jury and produced the requested documents. The problem here is that the government later indicted him and "failed to establish its previous knowledge of the existence or location of the documents." This presents a problem for the government under the Supreme Court's decision in the famed Hubbell case, where the Supreme Court reversed a conviction rejecting the "'manna from heaven theory' by holding the use of contents of produced documents to be barred derivative use of the compelled testimonial act of production." (Ponds, at * 7).

Now mind you, the above skips many steps in presenting the law of the Hubbell and Fisher cases. But the bottom line is - is it proper for the government to give someone immunity and then use something that the person gives to the government pursuant to the grant of immunity, against them in a criminal trial. The real question is whether an immunity grant really carries any value to the individual if the government can then indict the person and use the documents given to them pursuant to an immunity grant.

In Ponds the court reverses the conviction and remands the case to the district court to examine "the degree of the government's impermissible use" and to determine if this was harmless error.

Here is a link to the US Court of Appeals for the DC Circuit's July 14, 2006 Decision in the Ponds case: http://pacer.cadc.uscourts.gov/docs/common/opinions/200607/03-3134a.pdf

Please, let us know what you think.

Decision can be found here.

(esp)

July 25, 2006 in Judicial Opinions | Permalink

A.J. Comparetto
08-05-2006, 04:16 PM
Here is Professor Henning's commentary (link to it here:http://lawprofessors.typepad.com/whitecollarcrime_blog/2006/07/was_it_manna_fr.html):

July 25, 2006
Was it "Manna from Heaven?"
Perhaps one of the most complicated areas of the law to understand is "act of production" when confronted with an immunity grant. How far can the government go in indicting a person when materials received from the individual were obtained pursuant to a grant of immunity?

A recent decision of the U.S. D.C. Circuit Court (United States v. Ponds) tackles this issue in a case involving a criminal defense attorney who was convicted of tax evasion, wire fraud, and fraud in the first degree in D.C. The case is the sad story of a criminal defense attorney who allegedly received a white 1991 Mercedes 500SL and failed to inform the court of the whereabouts of the automobile for forfeiture purposes. The accused was granted act-of-production immunity under 18 U.S.C. s 6002. Once granted the act-of-production immunity he appeared before the grand jury and produced the requested documents. The problem here is that the government later indicted him and "failed to establish its previous knowledge of the existence or location of the documents." This presents a problem for the government under the Supreme Court's decision in the famed Hubbell case, where the Supreme Court reversed a conviction rejecting the "'manna from heaven theory' by holding the use of contents of produced documents to be barred derivative use of the compelled testimonial act of production." (Ponds, at * 7).

Now mind you, the above skips many steps in presenting the law of the Hubbell and Fisher cases. But the bottom line is - is it proper for the government to give someone immunity and then use something that the person gives to the government pursuant to the grant of immunity, against them in a criminal trial. The real question is whether an immunity grant really carries any value to the individual if the government can then indict the person and use the documents given to them pursuant to an immunity grant.

In Ponds the court reverses the conviction and remands the case to the district court to examine "the degree of the government's impermissible use" and to determine if this was harmless error.

Here is a link to the US Court of Appeals for the DC Circuit's July 14, 2006 Decision in the Ponds case: http://pacer.cadc.uscourts.gov/docs/common/opinions/200607/03-3134a.pdf

Please, let us know what you think.

Decision can be found here.

(esp)

July 25, 2006 in Judicial Opinions | Permalink
I believe that the Ponds decision (http://pacer.cadc.uscourts.gov/docs/common/opinions/200607/03-3134a.pdf) deserves a very careful, close and searching reading by anyone who has even the slightest interest in the protections afforded by the 5th amendment, inclusive of its "act of production" privilege component.

There are many potential implications in Ponds....that could .....under certain facts and circumstances..... very well apply to the 2257 context.

rockslammer
08-05-2006, 08:47 PM
Thank you for your response and the links. So far some interesting reading.

In my opinion, narrowing "regulatory", as narrowly defined in U.S. v. Biswell, 406 U.S. 311. ,wIll be a critical point in any defense.

A.J. Comparetto
08-07-2006, 01:29 PM
Thank you for your response and the links. So far some interesting reading.

In my opinion, narrowing "regulatory", as narrowly defined in U.S. v. Biswell, 406 U.S. 311. ,wIll be a critical point in any defense.
I agree. I would note that the Biswell analysis is applicable to the 4th amendment protection against unreasonable searches and seizures.

rockslammer
08-12-2006, 01:42 PM
BOYD v. U S, addresses both the 4th and 5th Amendment issues. It seems to be a ruling in tandem. The two amendments become inter-related, IMO.





§ 75.5 Inspection of records.

(f) Other law enforcement authority.
These regulations do not restrict the
otherwise lawful investigative
prerogatives of an investigator while
conducting an inspection.
(g) Seizure of evidence.
Notwithstanding any provision of this
part or any other regulation, a law
enforcement officer may seize any
evidence of the commission of any
felony while conducting an inspection.


§ 2257. Record keeping requirements

(d) (1) No information or evidence obtained from records required to be created or maintained by this section shall, except as provided in this section, directly or indirect-ly, be used as evidence against any person with respect to any violation of law.

It's a case of partial immunity. Perhaps similar to the Hubble case.

Interesting point; if the "plain sight rule" can apply to a search where there was no warrant. I don't believe so. Again, you can't have your cake and eat it too.

A.J. Comparetto
08-12-2006, 03:49 PM
BOYD v. U S, addresses both the 4th and 5th Amendment issues. It seems to be a ruling in tandem. The two amendments become inter-related, IMO.







It's a case of partial immunity. Perhaps similar to the Hubble case.

Interesting point; if the "plain sight rule" can apply to a search where there was no warrant. I don't believe so. Again, you can't have your cake and eat it too.
As I mentioned before, while BOYD has never been outright overruled, its protection of the contents of records and things is no longer regarded as the law of the land. Instead, what is protected is the so-called "act of production." I have posted links to this area of the law. You may wish to check it out.

Although the contents as opposed to the act of production is unprotected, Justices Scalia and Thomas have expressed the view in their concurring opinion in the Hubbell case that the US Supreme Court's jurisprudence in BOYD needs to be resurrected because they believe that the original intent of our founders was to protect the contents of everything against intrusion by governemnt agents.

Let me address the idea that section 2257(d)(1) confers some kind of "partial immunity". The immunity conferred by that section is not coextensive with the Fifth Amendment's guaranteed right against compelled self-incrimination. You may wish to check out Kastigar v. United States, 406 U.S. 441 (1972); Manness v. Meyers, 419 U.S. 449 (1975); and, the discussion of immunity and the Fifth Amendment in Compelled Statements of Government Employees (link: http://nysba.org/Template.cfm?Section=Home&Template=/ContentManagement/ContentDisplay.cfm&ContentID=58566)

The bottom line is: I do not believe that section 2257(d)(1) confers use and derivative use immunity. Thus, it is not an immunity statute in accordance with the requirements of the Fifth Amendment and clearly-established case law.

A.J. Comparetto
08-12-2006, 04:11 PM
As I mentioned before, while BOYD has never been outright overruled, its protection of the contents of records and things is no longer regarded as the law of the land. Instead, what is protected is the so-called "act of production." I have posted links to this area of the law. You may wish to check it out.

Although the contents as opposed to the act of production is unprotected, Justices Scalia and Thomas have expressed the view in their concurring opinion in the Hubbell case that the US Supreme Court's jurisprudence in BOYD needs to be resurrected because they believe that the original intent of our founders was to protect the contents of everything against intrusion by governemnt agents.

Let me address the idea that section 2257(d)(1) confers some kind of "partial immunity". The immunity conferred by that section is not coextensive with the Fifth Amendment's guaranteed right against compelled self-incrimination. You may wish to check out Kastigar v. United States, 406 U.S. 441 (1972); Manness v. Meyers, 419 U.S. 449 (1975); and, the discussion of immunity and the Fifth Amendment in Compelled Statements of Government Employees (link: http://nysba.org/Template.cfm?Section=Home&Template=/ContentManagement/ContentDisplay.cfm&ContentID=58566)

The bottom line is: I do not believe that section 2257(d)(1) confers use and derivative use immunity. Thus, it is not an immunity statute in accordance with the requirements of the Fifth Amendment and clearly-established case law.
The Power To Compel Testimony and Disclosure
Immunity.—"Immunity statutes, which have historical roots deep in Anglo-American jurisprudence, are not incompatible [with the values of the self-incrimination clause]. Rather they seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify. The existence of these statutes reflects the importance of testimony, and the fact that many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime."219 Apparently the first immunity statute was enacted by Parliament in 1710220 and it was widely copied in the colonies. The first federal immunity statute was enacted in 1857, and immunized any person who testified before a congressional committee from prosecution for any matter "touching which" he had testified.221

Revised in 1862 so as merely to prevent the use of the congressional testimony at a subsequent prosecution of any congressional witness,222 the statute was soon rendered unenforceable by the ruling in Counselman v. Hitchcock223 that an analogous limited immunity statute was unconstitutional because it did not confer an immunity coextensive with the privilege it replaced. Counselman was ambiguous with regard to its grounds because it identified two faults in the statute: it did not proscribe "derivative" evidence224 and it prohibited only future use of the compelled testimony.225 The latter language accentuated a division between adherents of "transactional" immunity and of "use" immunity which has continued to the present.226 In any event, following Counselman, Congress enacted a statute which conferred transactional immunity as the price for being able to compel testimony,227 and the Court sustained this law in a five-to-four decision.228

219 Kastigar v. United States, 406 U.S. 441, 445-46 (1972). It has been held that the Fifth Amendment itself precludes the use as criminal evidence of compelled admissions, Garrity v. New Jersey, 385 U.S. 493 (1967), but this case and dicta in others is unreconciled with the cases that find that one may "waive" though inadvertently the privilege and be required to testify and incriminate oneself. Rogers v. United States, 340 U.S. 367 (1951).

220 9 Anne, c. 14, 3-4 (1710). See Kastigar v. United States, 406 U.S. 441, 445 n.13 (1972).

221 Ch. 19, 11 Stat. 155 (1857). There was an exception for perjury committed while testifying before Congress.

222 Ch. 11, 12 Stat. 333 (1862).

223 142 U.S. 547 (1892). The statute struck down was ch. 13, 15 Stat. 37 (1868).

224 Counselman v. Hitchcock, 142 U.S. 547, 564 (1892). And see id. at 586.

225 142 U.S. at 585-86.

226 "Transactional" immunity means that once a witness has been compelled to testify about an offense, he may never be prosecuted for that offense, no matter how much independent evidence might come to light; "use" immunity means that no testimony compelled to be given and no evidence derived from or obtained because of the compelled testimony may be used if the person is subsequently prosecuted on independent evidence for the offense.

227 Ch. 83, 27 Stat. 443 (1893).

228 Brown v. Walker, 161 U.S. 591 (1896). The majority reasoned that one was excused from testifying only if there could be legal detriment flowing from his act of testifying. If a statute of limitations had run or if a pardon had been issued with regard to a particular offense, a witness could not claim the privilege and refuse to testify, no matter how much other detriment, such as loss of reputation, would attach to his admissions. Therefore, since the statute acted as a pardon or amnesty and relieved the witness of all legal detriment, he must testify. The four dissenters contended essentially that the privilege protected against being compelled to incriminate oneself regardless of any subsequent prosecutorial effort, id. at 610, and that a witness was protected against infamy and disparagement as much as prosecution. Id. at 628.

A.J. Comparetto
08-12-2006, 04:12 PM
The Power To Compel Testimony and Disclosure
Immunity.—"Immunity statutes, which have historical roots deep in Anglo-American jurisprudence, are not incompatible [with the values of the self-incrimination clause]. Rather they seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify. The existence of these statutes reflects the importance of testimony, and the fact that many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime."219 Apparently the first immunity statute was enacted by Parliament in 1710220 and it was widely copied in the colonies. The first federal immunity statute was enacted in 1857, and immunized any person who testified before a congressional committee from prosecution for any matter "touching which" he had testified.221

Revised in 1862 so as merely to prevent the use of the congressional testimony at a subsequent prosecution of any congressional witness,222 the statute was soon rendered unenforceable by the ruling in Counselman v. Hitchcock223 that an analogous limited immunity statute was unconstitutional because it did not confer an immunity coextensive with the privilege it replaced. Counselman was ambiguous with regard to its grounds because it identified two faults in the statute: it did not proscribe "derivative" evidence224 and it prohibited only future use of the compelled testimony.225 The latter language accentuated a division between adherents of "transactional" immunity and of "use" immunity which has continued to the present.226 In any event, following Counselman, Congress enacted a statute which conferred transactional immunity as the price for being able to compel testimony,227 and the Court sustained this law in a five-to-four decision.228

219 Kastigar v. United States, 406 U.S. 441, 445-46 (1972). It has been held that the Fifth Amendment itself precludes the use as criminal evidence of compelled admissions, Garrity v. New Jersey, 385 U.S. 493 (1967), but this case and dicta in others is unreconciled with the cases that find that one may "waive" though inadvertently the privilege and be required to testify and incriminate oneself. Rogers v. United States, 340 U.S. 367 (1951).

220 9 Anne, c. 14, 3-4 (1710). See Kastigar v. United States, 406 U.S. 441, 445 n.13 (1972).

221 Ch. 19, 11 Stat. 155 (1857). There was an exception for perjury committed while testifying before Congress.

222 Ch. 11, 12 Stat. 333 (1862).

223 142 U.S. 547 (1892). The statute struck down was ch. 13, 15 Stat. 37 (1868).

224 Counselman v. Hitchcock, 142 U.S. 547, 564 (1892). And see id. at 586.

225 142 U.S. at 585-86.

226 "Transactional" immunity means that once a witness has been compelled to testify about an offense, he may never be prosecuted for that offense, no matter how much independent evidence might come to light; "use" immunity means that no testimony compelled to be given and no evidence derived from or obtained because of the compelled testimony may be used if the person is subsequently prosecuted on independent evidence for the offense.

227 Ch. 83, 27 Stat. 443 (1893).

228 Brown v. Walker, 161 U.S. 591 (1896). The majority reasoned that one was excused from testifying only if there could be legal detriment flowing from his act of testifying. If a statute of limitations had run or if a pardon had been issued with regard to a particular offense, a witness could not claim the privilege and refuse to testify, no matter how much other detriment, such as loss of reputation, would attach to his admissions. Therefore, since the statute acted as a pardon or amnesty and relieved the witness of all legal detriment, he must testify. The four dissenters contended essentially that the privilege protected against being compelled to incriminate oneself regardless of any subsequent prosecutorial effort, id. at 610, and that a witness was protected against infamy and disparagement as much as prosecution. Id. at 628.
"The 1893 statute has become part of our constitutional fabric and has been included 'in substantially the same terms, in virtually all of the major regulatory enactments of the Federal Government."'229 So spoke Justice Frankfurter in 1956, broadly reaffirming Brown v. Walker and upholding the constitutionality of a federal immunity statute.230 Because all but one of the immunity acts passed after Brown v. Walker were transactional immunity statutes,231 the question of the constitutional sufficiency of use immunity did not arise, although dicta in cases dealing with immunity continued to assert the necessity of the former type of grant.232 But beginning in 1964, when it applied the self-incrimination clause to the States, the Court was faced with the problem which arose because a State could grant immunity only in its own courts and not in the courts of another State or of the United States.233 On the other hand, to foreclose the States from compelling testimony because they could not immunize a witness in a subsequent "foreign" prosecution would severely limit state law enforcement efforts. Therefore, the Court emphasized the "use" restriction rationale of Counselman and announced that as a "constitutional rule, a state witness could not be compelled to incriminate himself under federal law unless federal authorities were precluded from using either his testimony or evidence derived from it," and thus formulated a use restriction to that effect.234 Then, while refusing to adopt the course because of statutory interpretation reasons, the Court indicated that use restriction in a federal regulatory scheme requiring the reporting of incriminating information was "in principle an attractive and apparently practical resolution of the difficult problem before us," citing Murphy with apparent approval.235

229 Ullmann v. United States, 350 U.S. 422, 438 (1956), (quoting Shapiro v. United States, 335 U.S. 1, 6 (1948)).

230 "[The] sole concern [of the privilege] is . . . with the danger to a witness forced to give testimony leading to the infliction of 'penalties affixed to the criminal acts'. . . . Immunity displaces the danger. Once the reason for the privilege ceases, the privilege ceases." 350 U.S. at 438-39. The internal quotation is from Boyd v. United States, 116 U.S. 616, 634 (1886).

231 Kastigar v. United States, 406 U.S. 441, 457-58 (1972); Piccirillo v. New York, 400 U.S. 548, 571 (1971) (Justice Brennan dissenting). The exception was an immunity provision of the bankruptcy laws, 30 Stat. 548 (1898), 11 U.S.C. § 25(a)(10), repealed by 84 Stat. 931 (1970). The right of a bankrupt to insist on his privilege against self-incrimination as against this statute was recognized in McCarthy v. Arndstein, 266 U.S. 34, 42 (1924), "because the present statute fails to afford complete immunity from a prosecution." The statute also failed to prohibit the use of derivative evidence. Arndstein v. McCarthy, 254 U.S. 71 (1920).

232 E.g., Hale v. Henkel, 201 U.S. 43, 67 (1906); United States v. Monia, 317 U.S. 424, 425, 428 (1943); Smith v. United States, 337 U.S. 137, 141, 146 (1949); United States v. Murdock, 284 U.S. 141 149 (1931); Adams v. Maryland, 347 U.S. 179, 182 (1954). In Ullmann v. United States, 350 U.S. 422, 436-37 (1956), Justice Frankfurter described the holding of Counselman as relating to the absence of a prohibition on the use of derivative evidence.

233 Malloy v. Hogan, 378 U.S. 1 (1964), extended the clause to the States. That Congress could immunize a federal witness from state prosecution and, of course, extend use immunity to state courts, was held in Adams v. Maryland, 347 U.S. 179 (1954), and had been recognized in Brown v. Walker, 161 U.S. 591 (1896).

234 Murphy v. Waterfront Comm'n, 378 U.S. 52, 77-99 (1964). Concurring, Justices White and Stewart argued at length in support of the constitutional sufficiency of use immunity and the lack of a constitutional requirement of transactional immunity. Id. at 92. See also Gardner v. Broderick, 392 U.S. 273 (1968); Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation, 392 U.S. 280 (1968); Garrity v. New Jersey, 385 U.S. 493 (1967), recognizing the propriety of compelling testimony with a use restriction attached.

235 Marchetti v. United States, 390 U.S. 39, 58 (1968).

A.J. Comparetto
08-12-2006, 04:13 PM
"The 1893 statute has become part of our constitutional fabric and has been included 'in substantially the same terms, in virtually all of the major regulatory enactments of the Federal Government."'229 So spoke Justice Frankfurter in 1956, broadly reaffirming Brown v. Walker and upholding the constitutionality of a federal immunity statute.230 Because all but one of the immunity acts passed after Brown v. Walker were transactional immunity statutes,231 the question of the constitutional sufficiency of use immunity did not arise, although dicta in cases dealing with immunity continued to assert the necessity of the former type of grant.232 But beginning in 1964, when it applied the self-incrimination clause to the States, the Court was faced with the problem which arose because a State could grant immunity only in its own courts and not in the courts of another State or of the United States.233 On the other hand, to foreclose the States from compelling testimony because they could not immunize a witness in a subsequent "foreign" prosecution would severely limit state law enforcement efforts. Therefore, the Court emphasized the "use" restriction rationale of Counselman and announced that as a "constitutional rule, a state witness could not be compelled to incriminate himself under federal law unless federal authorities were precluded from using either his testimony or evidence derived from it," and thus formulated a use restriction to that effect.234 Then, while refusing to adopt the course because of statutory interpretation reasons, the Court indicated that use restriction in a federal regulatory scheme requiring the reporting of incriminating information was "in principle an attractive and apparently practical resolution of the difficult problem before us," citing Murphy with apparent approval.235

229 Ullmann v. United States, 350 U.S. 422, 438 (1956), (quoting Shapiro v. United States, 335 U.S. 1, 6 (1948)).

230 "[The] sole concern [of the privilege] is . . . with the danger to a witness forced to give testimony leading to the infliction of 'penalties affixed to the criminal acts'. . . . Immunity displaces the danger. Once the reason for the privilege ceases, the privilege ceases." 350 U.S. at 438-39. The internal quotation is from Boyd v. United States, 116 U.S. 616, 634 (1886).

231 Kastigar v. United States, 406 U.S. 441, 457-58 (1972); Piccirillo v. New York, 400 U.S. 548, 571 (1971) (Justice Brennan dissenting). The exception was an immunity provision of the bankruptcy laws, 30 Stat. 548 (1898), 11 U.S.C. § 25(a)(10), repealed by 84 Stat. 931 (1970). The right of a bankrupt to insist on his privilege against self-incrimination as against this statute was recognized in McCarthy v. Arndstein, 266 U.S. 34, 42 (1924), "because the present statute fails to afford complete immunity from a prosecution." The statute also failed to prohibit the use of derivative evidence. Arndstein v. McCarthy, 254 U.S. 71 (1920).

232 E.g., Hale v. Henkel, 201 U.S. 43, 67 (1906); United States v. Monia, 317 U.S. 424, 425, 428 (1943); Smith v. United States, 337 U.S. 137, 141, 146 (1949); United States v. Murdock, 284 U.S. 141 149 (1931); Adams v. Maryland, 347 U.S. 179, 182 (1954). In Ullmann v. United States, 350 U.S. 422, 436-37 (1956), Justice Frankfurter described the holding of Counselman as relating to the absence of a prohibition on the use of derivative evidence.

233 Malloy v. Hogan, 378 U.S. 1 (1964), extended the clause to the States. That Congress could immunize a federal witness from state prosecution and, of course, extend use immunity to state courts, was held in Adams v. Maryland, 347 U.S. 179 (1954), and had been recognized in Brown v. Walker, 161 U.S. 591 (1896).

234 Murphy v. Waterfront Comm'n, 378 U.S. 52, 77-99 (1964). Concurring, Justices White and Stewart argued at length in support of the constitutional sufficiency of use immunity and the lack of a constitutional requirement of transactional immunity. Id. at 92. See also Gardner v. Broderick, 392 U.S. 273 (1968); Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation, 392 U.S. 280 (1968); Garrity v. New Jersey, 385 U.S. 493 (1967), recognizing the propriety of compelling testimony with a use restriction attached.

235 Marchetti v. United States, 390 U.S. 39, 58 (1968).
Congress thereupon enacted a statute replacing all prior immunity statutes and adopting a use-immunity restriction only.236 Soon tested, this statute was sustained in Kastigar v. United States.237 "[P]rotection coextensive with the privilege is the degree of protection which the Constitution requires," wrote Justice Powell for the Court, "and is all that the Constitution requires. . . ."238 "Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being 'forced to give testimony leading to the infliction of penalties affixed to . . . criminal acts.' Immunity from the use of compelled testimony and evidence derived directly and indirectly therefrom affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness."239

236 Organized Crime Control Act of 1970, Pub. L. No. 91-452, § 201(a), 84 Stat. 922, 18 U.S.C. §§ 6002-03. Justice Department officials have the authority under the Act to decide whether to seek immunity, and courts will not apply "constructive" use immunity absent compliance with the statute's procedures. United States v. Doe, 465 U.S. 605 (1984).

237 406 U.S. 441 (1972). A similar state statute was sustained in Zicarelli v. New Jersey State Comm'n of Investigation, 406 U.S. 472 (1972).

238 Kastigar v. United States, 406 U.S. 441, 459 (1972). See also United States v. Hubbell, 530 U.S. 27 (2000) (because the statute protects against derivative use of compelled testimony, a prosecution cannot be based on incriminating evidence revealed only as the result of compliance with an extremely broad subpoena).

A.J. Comparetto
08-12-2006, 04:14 PM
Congress thereupon enacted a statute replacing all prior immunity statutes and adopting a use-immunity restriction only.236 Soon tested, this statute was sustained in Kastigar v. United States.237 "[P]rotection coextensive with the privilege is the degree of protection which the Constitution requires," wrote Justice Powell for the Court, "and is all that the Constitution requires. . . ."238 "Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being 'forced to give testimony leading to the infliction of penalties affixed to . . . criminal acts.' Immunity from the use of compelled testimony and evidence derived directly and indirectly therefrom affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness."239

236 Organized Crime Control Act of 1970, Pub. L. No. 91-452, § 201(a), 84 Stat. 922, 18 U.S.C. §§ 6002-03. Justice Department officials have the authority under the Act to decide whether to seek immunity, and courts will not apply "constructive" use immunity absent compliance with the statute's procedures. United States v. Doe, 465 U.S. 605 (1984).

237 406 U.S. 441 (1972). A similar state statute was sustained in Zicarelli v. New Jersey State Comm'n of Investigation, 406 U.S. 472 (1972).

238 Kastigar v. United States, 406 U.S. 441, 459 (1972). See also United States v. Hubbell, 530 U.S. 27 (2000) (because the statute protects against derivative use of compelled testimony, a prosecution cannot be based on incriminating evidence revealed only as the result of compliance with an extremely broad subpoena).
Required Records Doctrine.—While the privilege is applicable to an individual's papers and effects,240 it does not extend to corporate persons, hence corporate records, as has been noted, are subject to compelled production.241 In fact, however, the Court has greatly narrowed the protection afforded in this area to natural persons by developing the "required records" doctrine. That is, it has held "that the privilege which exists as to private papers cannot be maintained in relation to 'records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established."'242 This exception developed out of, as Justice Frankfurter showed in dissent, the rule that documents which are part of the official records of government are wholly outside the scope of the privilege; public records are the property of government and are always accessible to inspection. Because government requires certain records to be kept to facilitate the regulation of the business being conducted, so the reasoning goes, the records become public at least to the degree that government could always scrutinize them without hindrance from the record-keeper. "If records merely because required to be kept by law ipso facto become public records, we are indeed living in glass houses. Virtually every major public law enactment—to say nothing of State and local legislation—has record-keeping provisions. In addition to record-keeping requirements, is the network of provisions for filing reports. Exhaustive efforts would be needed to track down all the statutory authority, let alone the administrative regulations, for record-keeping and reporting requirements. Unquestionably they are enormous in volume."243

239 406 U.S. at 453. Joining Justice Powell in the opinion were Justices Stewart, White, and Blackmun, and Chief Justice Burger. Justices Douglas and Marshall dissented, contending that a ban on use could not be enforced even if a use ban was constitutionally adequate. Id. at 462, 467. Justices Brennan and Rehnquist did not participate but Justice Brennan's views that transactional immunity was required had been previously stated. Piccirillo v. New York, 400 U.S. 548, 552 (1971) (dissenting). See also New Jersey v. Portash, 440 U.S. 451 (1979) (prosecution use of defendant's immunized testimony to impeach him at trial violates self-incrimination clause). Neither the clause nor the statute prevents the perjury prosecution of an immunized witness or the use of all his testimony to prove the commission of perjury. United States v. Apfelbaum, 445 U.S. 115 (1980). See also United States v. Wong, 431 U.S. 174 (1977); United States v. Mandujano, 425 U.S. 564 (1976). Because use immunity is limited, a witness granted use immunity for grand jury testimony may validly invoke his Fifth Amendment privilege in a civil deposition proceeding when asked whether he had "so testified" previously, the deposition testimony not being covered by the earlier immunity. Pillsbury Co. v. Conboy, 459 U.S. 248 (1983).

240 Boyd v. United States, 116 U.S. 616 (1886). But see Fisher v. United States, 425 U.S. 391 (1976).

241 See discussion supra under "Development and Scope."

242 Shapiro v. United States, 335 U.S. 1, 33 (1948), (quoting Davis v. United States, 328 U.S. 582, 589-90 (1946), (quoting in turn Wilson v. United States, 221 U.S. 361, 380 (1911))). Wilson is the source of the required-records doctrine in its dicta, the holding in the case being the familiar one that a corporate officer cannot claim the privilege against self-incrimination to refuse to surrender corporate records in his custody. Cf. Heike v. United States, 227 U.S. 131 (1913). Davis was a search and seizure case and dealt with gasoline ration coupons which were government property even though in private possession. See Shapiro, 335 U.S. at 36, 56-70 (Justice Frankfurter dissenting).

243 335 U.S. at 51.



"It may be assumed at the outset that there are limits which the Government cannot constitutionally exceed in requiring the keeping of records which may be inspected by an administrative agency and may be used in prosecuting statutory violations committed by the recordkeeper himself."244 But the only limit which the Court suggested in Shapiro was that there must be "a sufficient relation between the activity sought to be regulated and the public concern so that the Government can constitutionally regulate or forbid the basic activity concerned, and can constitutionally require the keeping of particular records, subject to inspection by the Administrator."245 That there are limits established by the self-incrimination clause itself rather than by a subject matter jurisdiction test is evident in the Court's consideration of reporting and disclosure requirements implicating but not directly involving the required-records doctrine.

A.J. Comparetto
08-12-2006, 04:15 PM
Required Records Doctrine.—While the privilege is applicable to an individual's papers and effects,240 it does not extend to corporate persons, hence corporate records, as has been noted, are subject to compelled production.241 In fact, however, the Court has greatly narrowed the protection afforded in this area to natural persons by developing the "required records" doctrine. That is, it has held "that the privilege which exists as to private papers cannot be maintained in relation to 'records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established."'242 This exception developed out of, as Justice Frankfurter showed in dissent, the rule that documents which are part of the official records of government are wholly outside the scope of the privilege; public records are the property of government and are always accessible to inspection. Because government requires certain records to be kept to facilitate the regulation of the business being conducted, so the reasoning goes, the records become public at least to the degree that government could always scrutinize them without hindrance from the record-keeper. "If records merely because required to be kept by law ipso facto become public records, we are indeed living in glass houses. Virtually every major public law enactment—to say nothing of State and local legislation—has record-keeping provisions. In addition to record-keeping requirements, is the network of provisions for filing reports. Exhaustive efforts would be needed to track down all the statutory authority, let alone the administrative regulations, for record-keeping and reporting requirements. Unquestionably they are enormous in volume."243

239 406 U.S. at 453. Joining Justice Powell in the opinion were Justices Stewart, White, and Blackmun, and Chief Justice Burger. Justices Douglas and Marshall dissented, contending that a ban on use could not be enforced even if a use ban was constitutionally adequate. Id. at 462, 467. Justices Brennan and Rehnquist did not participate but Justice Brennan's views that transactional immunity was required had been previously stated. Piccirillo v. New York, 400 U.S. 548, 552 (1971) (dissenting). See also New Jersey v. Portash, 440 U.S. 451 (1979) (prosecution use of defendant's immunized testimony to impeach him at trial violates self-incrimination clause). Neither the clause nor the statute prevents the perjury prosecution of an immunized witness or the use of all his testimony to prove the commission of perjury. United States v. Apfelbaum, 445 U.S. 115 (1980). See also United States v. Wong, 431 U.S. 174 (1977); United States v. Mandujano, 425 U.S. 564 (1976). Because use immunity is limited, a witness granted use immunity for grand jury testimony may validly invoke his Fifth Amendment privilege in a civil deposition proceeding when asked whether he had "so testified" previously, the deposition testimony not being covered by the earlier immunity. Pillsbury Co. v. Conboy, 459 U.S. 248 (1983).

240 Boyd v. United States, 116 U.S. 616 (1886). But see Fisher v. United States, 425 U.S. 391 (1976).

241 See discussion supra under "Development and Scope."

242 Shapiro v. United States, 335 U.S. 1, 33 (1948), (quoting Davis v. United States, 328 U.S. 582, 589-90 (1946), (quoting in turn Wilson v. United States, 221 U.S. 361, 380 (1911))). Wilson is the source of the required-records doctrine in its dicta, the holding in the case being the familiar one that a corporate officer cannot claim the privilege against self-incrimination to refuse to surrender corporate records in his custody. Cf. Heike v. United States, 227 U.S. 131 (1913). Davis was a search and seizure case and dealt with gasoline ration coupons which were government property even though in private possession. See Shapiro, 335 U.S. at 36, 56-70 (Justice Frankfurter dissenting).

243 335 U.S. at 51.



"It may be assumed at the outset that there are limits which the Government cannot constitutionally exceed in requiring the keeping of records which may be inspected by an administrative agency and may be used in prosecuting statutory violations committed by the recordkeeper himself."244 But the only limit which the Court suggested in Shapiro was that there must be "a sufficient relation between the activity sought to be regulated and the public concern so that the Government can constitutionally regulate or forbid the basic activity concerned, and can constitutionally require the keeping of particular records, subject to inspection by the Administrator."245 That there are limits established by the self-incrimination clause itself rather than by a subject matter jurisdiction test is evident in the Court's consideration of reporting and disclosure requirements implicating but not directly involving the required-records doctrine.
Reporting and Disclosure.—The line of cases begins with United States v. Sullivan246 in which a unanimous Court held that the Fifth Amendment did not privilege a bootlegger in not filing an income tax return because the filing would have disclosed the illegality in which he was engaged. "It would be an extreme if not an extravagant application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime." Justice Holmes stated for the Court. However, "[i]f the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return . . . ." Utilizing its taxing power to reach gambling activities over which it might not have had jurisdiction otherwise,247 Congress enacted a complicated statute imposing an annual occupational tax on gamblers and an excise tax on all their wages, and coupled the tax with an annual registration requirement under which each gambler must file with the IRS a declaration of his business with identification of his place of business and his employees and agents, filings which were made available to state and local law enforcement agencies. These requirements were upheld by the Court against self-incrimination challenges on the three grounds that (1) the privilege did not excuse a complete failure to file, (2) since the threshold decision to gamble was voluntary, the required disclosures were not compulsory, and (3) since registration required disclosure only of prospective conduct, the privilege, limited to past or present acts, did not apply.248

244 335 U.S. at 32.

245 335 U.S. at 32

246 274 U.S. 259, 263, 264 (1927). Sullivan was reaffirmed in Garner v. United States, 424 U.S. 648 (1976), holding that a taxpayer's privilege against self-incrimination was not violated when he failed to claim his privilege on his tax returns, and instead gave incriminating information leading to conviction. One must assert one's privilege to alert the Government to the possibility that it is seeking to obtain incriminating material. It is not coercion forbidden by the clause that upon a claim of the privilege the Government could seek an indictment for failure to file, since a valid claim of privilege cannot be the basis of a conviction. The taxpayer was not entitled to a judicial ruling on the validity of his claim and an opportunity to reconsider if the ruling went against him, irrespective of whether a good-faith erroneous assertion of the privilege could subject him to prosecution, a question not resolved.

247 The expansion of the commerce power would now obviate reliance on the taxing power.

248 United States v. Kahriger, 345 U.S. 22 (1953); Lewis v. United States, 348 U.S. 419 (1955).

A.J. Comparetto
08-12-2006, 04:17 PM
Reporting and Disclosure.—The line of cases begins with United States v. Sullivan246 in which a unanimous Court held that the Fifth Amendment did not privilege a bootlegger in not filing an income tax return because the filing would have disclosed the illegality in which he was engaged. "It would be an extreme if not an extravagant application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime." Justice Holmes stated for the Court. However, "[i]f the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return . . . ." Utilizing its taxing power to reach gambling activities over which it might not have had jurisdiction otherwise,247 Congress enacted a complicated statute imposing an annual occupational tax on gamblers and an excise tax on all their wages, and coupled the tax with an annual registration requirement under which each gambler must file with the IRS a declaration of his business with identification of his place of business and his employees and agents, filings which were made available to state and local law enforcement agencies. These requirements were upheld by the Court against self-incrimination challenges on the three grounds that (1) the privilege did not excuse a complete failure to file, (2) since the threshold decision to gamble was voluntary, the required disclosures were not compulsory, and (3) since registration required disclosure only of prospective conduct, the privilege, limited to past or present acts, did not apply.248

244 335 U.S. at 32.

245 335 U.S. at 32

246 274 U.S. 259, 263, 264 (1927). Sullivan was reaffirmed in Garner v. United States, 424 U.S. 648 (1976), holding that a taxpayer's privilege against self-incrimination was not violated when he failed to claim his privilege on his tax returns, and instead gave incriminating information leading to conviction. One must assert one's privilege to alert the Government to the possibility that it is seeking to obtain incriminating material. It is not coercion forbidden by the clause that upon a claim of the privilege the Government could seek an indictment for failure to file, since a valid claim of privilege cannot be the basis of a conviction. The taxpayer was not entitled to a judicial ruling on the validity of his claim and an opportunity to reconsider if the ruling went against him, irrespective of whether a good-faith erroneous assertion of the privilege could subject him to prosecution, a question not resolved.

247 The expansion of the commerce power would now obviate reliance on the taxing power.

248 United States v. Kahriger, 345 U.S. 22 (1953); Lewis v. United States, 348 U.S. 419 (1955).
Constitutional limitations appeared, however, in Albertson v. SACB,249 which struck down under the self-incrimination clause an order pursuant to statute requiring registration by individual members of the Communist Party or associated organizations. "In Sullivan the questions in the income tax return were neutral on their face and directed at the public at large, but here they are directed at a highly selective group inherently suspect of criminal activities. Petitioners' claims are not asserted in an essentially noncriminal and regulatory area of inquiry, but against an inquiry in an area permeated with criminal statutes, where response to any of the form's questions in context might involve the petitioners in the admission of a crucial element of a crime."250

The gambling tax reporting scheme was next struck down by the Court.251 Because of the pervasiveness of state laws prohibiting gambling, said Justice Harlan for the Court, "the obligations to register and to pay the occupational tax created for petitioner 'real and appreciable,' and not merely 'imaginary and unsubstantial,' hazards of self-incrimination."252 Overruling Kahriger and Lewis, the Court rejected its earlier rationales. Registering per se would have exposed a gambler to dangers of state prosecution, so Sullivan did not apply.253 Any contention that the voluntary engagement in gambling "waived" the self-incrimination claim, because there is "no constitutional right to gamble," would nullify the privilege.254 And the privilege was not governed by a "rigid chronological distinction" so that it protected only past or present conduct, but also reached future self-incrimination the danger of which is not speculative and insubstantial.255 Significantly, then, Justice Harlan turned to distinguishing the statutory requirements here from the "required records" doctrine of Shapiro. "First, petitioner . . . was not . . . obliged to keep and preserve records 'of the same kind as he has customarily kept'; he was required simply to provide information, unrelated to any records which he may have maintained, about his wagering activities. This requirement is not significantly different from a demand that he provide oral testimony . . . . Second, whatever 'public aspects' there were to the records at issue in Shapiro, there are none to the information demanded from Marchetti. The Government's anxiety to obtain information known to a private individual does not without more render that information public; if it did, no room would remain for the application of the constitutional privilege. Nor does it stamp information with a public character that the Government has formalized its demands in the attire of a statute; if this alone were sufficient, the constitutional privilege could be entirely abrogated by any Act of Congress. Third, the requirements at issue in Shapiro were imposed in 'an essentially non-criminal and regulatory area of inquiry' while those here are directed to a 'selective group inherently suspect of criminal activities.' The United States' principal interest is evidently the collection of revenue, and not the punishment of gamblers, . . . but the characteristics of the activities about which information is sought, and the composition of the groups to which inquiries are made, readily distinguish this situation from that in Shapiro."256

A.J. Comparetto
08-12-2006, 04:18 PM
Constitutional limitations appeared, however, in Albertson v. SACB,249 which struck down under the self-incrimination clause an order pursuant to statute requiring registration by individual members of the Communist Party or associated organizations. "In Sullivan the questions in the income tax return were neutral on their face and directed at the public at large, but here they are directed at a highly selective group inherently suspect of criminal activities. Petitioners' claims are not asserted in an essentially noncriminal and regulatory area of inquiry, but against an inquiry in an area permeated with criminal statutes, where response to any of the form's questions in context might involve the petitioners in the admission of a crucial element of a crime."250

The gambling tax reporting scheme was next struck down by the Court.251 Because of the pervasiveness of state laws prohibiting gambling, said Justice Harlan for the Court, "the obligations to register and to pay the occupational tax created for petitioner 'real and appreciable,' and not merely 'imaginary and unsubstantial,' hazards of self-incrimination."252 Overruling Kahriger and Lewis, the Court rejected its earlier rationales. Registering per se would have exposed a gambler to dangers of state prosecution, so Sullivan did not apply.253 Any contention that the voluntary engagement in gambling "waived" the self-incrimination claim, because there is "no constitutional right to gamble," would nullify the privilege.254 And the privilege was not governed by a "rigid chronological distinction" so that it protected only past or present conduct, but also reached future self-incrimination the danger of which is not speculative and insubstantial.255 Significantly, then, Justice Harlan turned to distinguishing the statutory requirements here from the "required records" doctrine of Shapiro. "First, petitioner . . . was not . . . obliged to keep and preserve records 'of the same kind as he has customarily kept'; he was required simply to provide information, unrelated to any records which he may have maintained, about his wagering activities. This requirement is not significantly different from a demand that he provide oral testimony . . . . Second, whatever 'public aspects' there were to the records at issue in Shapiro, there are none to the information demanded from Marchetti. The Government's anxiety to obtain information known to a private individual does not without more render that information public; if it did, no room would remain for the application of the constitutional privilege. Nor does it stamp information with a public character that the Government has formalized its demands in the attire of a statute; if this alone were sufficient, the constitutional privilege could be entirely abrogated by any Act of Congress. Third, the requirements at issue in Shapiro were imposed in 'an essentially non-criminal and regulatory area of inquiry' while those here are directed to a 'selective group inherently suspect of criminal activities.' The United States' principal interest is evidently the collection of revenue, and not the punishment of gamblers, . . . but the characteristics of the activities about which information is sought, and the composition of the groups to which inquiries are made, readily distinguish this situation from that in Shapiro."256
382 U.S. 70 (1965).

250 382 U.S. at 79. The decision was unanimous, Justice White not participating. The same issue had been held not ripe for adjudication in Communist Party v. SACB, 367 U.S. 1, 105-10 (1961).

251 Marchetti v. United States, 390 U.S. 39 (1968) (occupational tax); Grosso v. United States, 390 U.S. 62 (1968) (wagering excise tax). In Haynes v. United States, 390 U.S. 85 (1968), the Court struck down a requirement that one register a firearm that it was illegal to possess. The following Term on the same grounds the Court voided a statute prohibiting the possession of marijuana without having paid a transfer tax and registering. Leary v. United States, 395 U.S. 6 (1969); United States v. Covington, 395 U.S. 57 (1969). However, a statute was upheld which prohibited the sale of narcotics to a person who did not have a written order on a prescribed form, since the requirement caused the self-incrimination of the buyer but not the seller, the Court viewing the statute as actually a flat proscription on sale rather than a regulatory measure. Minor v. United States, 396 U.S. 87 (1969). The congressional response was reenactment of the requirements coupled with use immunity. United States v. Freed, 401 U.S. 601 (1971).

252 Marchetti v. United States, 390 U.S. 39, 48 (1968).

253 "Every element of these requirements would have served to incriminate petitioners; to have required him to present his claim to Treasury officers would have obliged him 'to prove guilt to avoid admitting it."' 390 U.S. at 50.

254 "The question is not whether petitioner holds a 'right' to violate state law, but whether, having done so, he may be compelled to give evidence against himself. The constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and foresighted; if such an inference of antecedent choice were alone enough to abrogate the privilege's protection, it would be excluded from the situations in which it has historically been guaranteed, and withheld from those who most require it." 390 U.S. at 51. But cf. California v. Byers, 402 U.S. 424, 434 (1971) (plurality opinion), in which it is suggested that because there is no "right" to leave the scene of an accident a requirement that a person involved in an accident stop and identify himself does not violate the self-incrimination clause.

255 Marchetti v. United States, 390 U.S. 39, 52-54 (1968). "The central standard for the privilege's application has been whether the claimant is confronted by substantial and 'real,' and not merely trifling or imaginary, hazards of incrimination . . . . This principle does not permit the rigid chronological distinctions adopted in Kahriger and Lewis. We see no reason to suppose that the force of the constitutional prohibition is diminished merely because confession of a guilty purpose precedes the act which it is subsequently employed to evidence." Id. at 53-54. Cf. United States v. Freed, 401 U.S. 601, 605-07 (1971).

256 Marchetti v. United States, 390 U.S. 39, 57 (1968).

A.J. Comparetto
08-12-2006, 04:19 PM
382 U.S. 70 (1965).

250 382 U.S. at 79. The decision was unanimous, Justice White not participating. The same issue had been held not ripe for adjudication in Communist Party v. SACB, 367 U.S. 1, 105-10 (1961).

251 Marchetti v. United States, 390 U.S. 39 (1968) (occupational tax); Grosso v. United States, 390 U.S. 62 (1968) (wagering excise tax). In Haynes v. United States, 390 U.S. 85 (1968), the Court struck down a requirement that one register a firearm that it was illegal to possess. The following Term on the same grounds the Court voided a statute prohibiting the possession of marijuana without having paid a transfer tax and registering. Leary v. United States, 395 U.S. 6 (1969); United States v. Covington, 395 U.S. 57 (1969). However, a statute was upheld which prohibited the sale of narcotics to a person who did not have a written order on a prescribed form, since the requirement caused the self-incrimination of the buyer but not the seller, the Court viewing the statute as actually a flat proscription on sale rather than a regulatory measure. Minor v. United States, 396 U.S. 87 (1969). The congressional response was reenactment of the requirements coupled with use immunity. United States v. Freed, 401 U.S. 601 (1971).

252 Marchetti v. United States, 390 U.S. 39, 48 (1968).

253 "Every element of these requirements would have served to incriminate petitioners; to have required him to present his claim to Treasury officers would have obliged him 'to prove guilt to avoid admitting it."' 390 U.S. at 50.

254 "The question is not whether petitioner holds a 'right' to violate state law, but whether, having done so, he may be compelled to give evidence against himself. The constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and foresighted; if such an inference of antecedent choice were alone enough to abrogate the privilege's protection, it would be excluded from the situations in which it has historically been guaranteed, and withheld from those who most require it." 390 U.S. at 51. But cf. California v. Byers, 402 U.S. 424, 434 (1971) (plurality opinion), in which it is suggested that because there is no "right" to leave the scene of an accident a requirement that a person involved in an accident stop and identify himself does not violate the self-incrimination clause.

255 Marchetti v. United States, 390 U.S. 39, 52-54 (1968). "The central standard for the privilege's application has been whether the claimant is confronted by substantial and 'real,' and not merely trifling or imaginary, hazards of incrimination . . . . This principle does not permit the rigid chronological distinctions adopted in Kahriger and Lewis. We see no reason to suppose that the force of the constitutional prohibition is diminished merely because confession of a guilty purpose precedes the act which it is subsequently employed to evidence." Id. at 53-54. Cf. United States v. Freed, 401 U.S. 601, 605-07 (1971).

256 Marchetti v. United States, 390 U.S. 39, 57 (1968).
Most recent of this line of cases is California v. Byers,257 which indicates that the Court has yet to settle on an ascertainable standard for judging self-incrimination claims in cases where government is asserting an interest other than criminal law enforcement. Byers sustained the constitutionality of a statute which required the driver of any automobile involved in an accident to stop and give his name and address. The state court had held that a driver who reasonably believed that compliance with the statute would result in self-incrimination could refuse to comply. A plurality of the Court, however, determined that Sullivan and Shapiro applied and not the Albertson- Marchetti line of cases, because the purpose of the statute was to promote the satisfaction of civil liabilities resulting from automobile accidents and not criminal prosecutions, and because the statute was directed to all drivers and not to a group which was either "highly selective" or "inherently suspect of criminal activities." The combination of a non-criminal motive with the general character of the requirement made too slight for reliance the possibility of incrimination.258 Justice Harlan concurred to make up the majority on the disposition of the case, disagreeing with the plurality's conclusion that the stop and identification requirement did not compel incrimination.259 However, the Justice thought that where there is no governmental purpose to enforce a criminal law and instead government is pursuing other legitimate regulatory interests, it is permissible to apply a balancing test between the government's interest and the individual's interest. When he balanced the interests protected by the Amendment—protection of privacy and maintenance of an accusatorial system—with the noncriminal purpose, the necessity for self-reporting as a means of securing information, and the nature of the disclosures required, Justice Harlan voted to sustain the statute.260 Byers was applied in Baltimore Dep't of Social Services v. Bouknight261 to uphold a juvenile court's order that the mother of a child under the court's supervision produce the child. Although in this case the mother was suspected of having abused or murdered her child, the order was justified for "compelling reasons unrelated to criminal law enforcement": concern for the child's safety.262 Moreover, because the mother had custody of her previously abused child only as a result of the juvenile court's order, the Court analogized to the required records cases to conclude that the mother had submitted to the requirements of the civil regulatory regime as the child's "custodian."

257 402 U.S. 424 (1971)

258 402 U.S. at 427-31 (Chief Justice Burger and Justices Stewart, White, and Blackmun).

259 "The California Supreme Court was surely correct in considering that the decisions of this Court have made it clear that invocation of the privilege is not limited to situations where the purpose of the inquiry is to get an incriminating answer . . . . [I]t must be recognized that a reading of our more recent cases . . . suggests the conclusion that the applicability of the privilege depends exclusively on a determination that, from the individual's point of view, there are 'real' and not 'imaginary' risks of self-incrimination in yielding to state compulsion. Thus, Marchetti and Grosso . . . start from an assumption of a non-prosecutorial governmental purpose in the decision to tax gambling revenues; those cases go on to apply what in another context I have called the 'real danger v. imaginary possibility standard . . . .' A judicial tribunal whose position with respect to the elaboration of constitutional doctrine is subordinate to that of this Court certainly cannot be faulted for reading these opinions as indicating that the 'inherently-suspect-class' factor is relevant only as an indicium of genuine incriminating risk as assessed from the individual's point of view." 402 U.S. at 437-38.

260 402 U.S. at 448-58. The four dissenters argued that it was unquestionable that Byers would have faced real risks of self-incrimination by compliance with the statute and that this risk was sufficient to invoke the privilege. Id. at 459, 464 (Justices Black, Douglas, Brennan, and Marshall).

261 493 U.S. 549 (1990).

262 493 U.S. at 561. By the same token, the Court concluded that the targeted group—persons who care for children pursuant to a juvenile court's custody order— is not a group "inherently suspect of criminal activities" in the Albertson-Marchetti sense.

A.J. Comparetto
08-12-2006, 04:23 PM
Most recent of this line of cases is California v. Byers,257 which indicates that the Court has yet to settle on an ascertainable standard for judging self-incrimination claims in cases where government is asserting an interest other than criminal law enforcement. Byers sustained the constitutionality of a statute which required the driver of any automobile involved in an accident to stop and give his name and address. The state court had held that a driver who reasonably believed that compliance with the statute would result in self-incrimination could refuse to comply. A plurality of the Court, however, determined that Sullivan and Shapiro applied and not the Albertson- Marchetti line of cases, because the purpose of the statute was to promote the satisfaction of civil liabilities resulting from automobile accidents and not criminal prosecutions, and because the statute was directed to all drivers and not to a group which was either "highly selective" or "inherently suspect of criminal activities." The combination of a non-criminal motive with the general character of the requirement made too slight for reliance the possibility of incrimination.258 Justice Harlan concurred to make up the majority on the disposition of the case, disagreeing with the plurality's conclusion that the stop and identification requirement did not compel incrimination.259 However, the Justice thought that where there is no governmental purpose to enforce a criminal law and instead government is pursuing other legitimate regulatory interests, it is permissible to apply a balancing test between the government's interest and the individual's interest. When he balanced the interests protected by the Amendment—protection of privacy and maintenance of an accusatorial system—with the noncriminal purpose, the necessity for self-reporting as a means of securing information, and the nature of the disclosures required, Justice Harlan voted to sustain the statute.260 Byers was applied in Baltimore Dep't of Social Services v. Bouknight261 to uphold a juvenile court's order that the mother of a child under the court's supervision produce the child. Although in this case the mother was suspected of having abused or murdered her child, the order was justified for "compelling reasons unrelated to criminal law enforcement": concern for the child's safety.262 Moreover, because the mother had custody of her previously abused child only as a result of the juvenile court's order, the Court analogized to the required records cases to conclude that the mother had submitted to the requirements of the civil regulatory regime as the child's "custodian."

257 402 U.S. 424 (1971)

258 402 U.S. at 427-31 (Chief Justice Burger and Justices Stewart, White, and Blackmun).

259 "The California Supreme Court was surely correct in considering that the decisions of this Court have made it clear that invocation of the privilege is not limited to situations where the purpose of the inquiry is to get an incriminating answer . . . . [I]t must be recognized that a reading of our more recent cases . . . suggests the conclusion that the applicability of the privilege depends exclusively on a determination that, from the individual's point of view, there are 'real' and not 'imaginary' risks of self-incrimination in yielding to state compulsion. Thus, Marchetti and Grosso . . . start from an assumption of a non-prosecutorial governmental purpose in the decision to tax gambling revenues; those cases go on to apply what in another context I have called the 'real danger v. imaginary possibility standard . . . .' A judicial tribunal whose position with respect to the elaboration of constitutional doctrine is subordinate to that of this Court certainly cannot be faulted for reading these opinions as indicating that the 'inherently-suspect-class' factor is relevant only as an indicium of genuine incriminating risk as assessed from the individual's point of view." 402 U.S. at 437-38.

260 402 U.S. at 448-58. The four dissenters argued that it was unquestionable that Byers would have faced real risks of self-incrimination by compliance with the statute and that this risk was sufficient to invoke the privilege. Id. at 459, 464 (Justices Black, Douglas, Brennan, and Marshall).

261 493 U.S. 549 (1990).

262 493 U.S. at 561. By the same token, the Court concluded that the targeted group—persons who care for children pursuant to a juvenile court's custody order— is not a group "inherently suspect of criminal activities" in the Albertson-Marchetti sense.
Below is an Opinion of the Attorney General of the State of Nebraska

February 18, 1982

(February 18, 1982)



Senator Samuel K. Cullan
Nebraska State Legislature
State Capitol, Room 807
Lincoln, Nebraska 68509

Dear Senator Cullan:

You have requested the opinion of this office regarding whether the provisions of LB 525 violate the Fifth Amendment of the United States Constitution. Said bill provides as follows:

Whenever a witness refuses on the basis of his or her privilege against self-incrimination, to testify or to provide other information in a criminal proceeding before a court or grand jury, the court, on motion of the prosecutor, may order the witness to testify or to provide other information. The witness may not refuse to comply with such an order of the court on the basis of his or her privilege against self-incrimination, but no testimony or other information compelled under the court's 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 in a prosecution for perjury, giving a false statement, or failing to comply with the order of the court.

A.J. Comparetto
08-12-2006, 04:24 PM
Below is an Opinion of the Attorney General of the State of Nebraska

February 18, 1982

(February 18, 1982)



Senator Samuel K. Cullan
Nebraska State Legislature
State Capitol, Room 807
Lincoln, Nebraska 68509

Dear Senator Cullan:

You have requested the opinion of this office regarding whether the provisions of LB 525 violate the Fifth Amendment of the United States Constitution. Said bill provides as follows:

Whenever a witness refuses on the basis of his or her privilege against self-incrimination, to testify or to provide other information in a criminal proceeding before a court or grand jury, the court, on motion of the prosecutor, may order the witness to testify or to provide other information. The witness may not refuse to comply with such an order of the court on the basis of his or her privilege against self-incrimination, but no testimony or other information compelled under the court's 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 in a prosecution for perjury, giving a false statement, or failing to comply with the order of the court.
It is well established that in order for a grant of immunity to be adequate, the scope of the immunity must be coextensive with the scope of the Fifth Amendment privilege against self-incrimination. Thus, legislation cannot replace this constitutional privilege unless it is broad enough to have the same scope and effect. Murphy v. Water Front Commission of New York, 378 U.S. 52 (1964).

The provisions of LB 525 grant a witness who is compelled to testify immunity from the use in any criminal case of the compelled testimony or any evidence derived therefrom. These provisions are quite similar to the federal witness immunity statute, 18 U.S.C. §6002, which was challenged in Kastigar v. United States, 406 U.S. 441
(1972), as abridging the Fifth Amendment privilege against compulsory self-incrimination. The court in Kastigar, supra, specifically rejected the argument that a grant of use and derivative use immunity was inadequate as the constitution mandated a grant of transactional immunity, that is immunity from criminal prosecution for or on account of any transaction or matter concerning which a witness testifies. Rather, the Supreme Court held that a statutory grant of immunity is constitutionally adequate where a witness, in return for being compelled to testify, is granted immunity from the use in any criminal case of the compelled testimony or any evidence derived therefrom. Thus, the court in Kastigar, supra, upheld the constitutionality of 18 U.S.C. §6002 upon concluding that the immunity granted by that statute is coextensive with the Fifth Amendment privilege and suffices to replace it.

As heretofore stated, the immunity granted under LB 525 is virtually identical to that permitted under 18 U.S.C. §6002. In our opinion, based on the analysis of the court in Kastigar, supra, a court would probably hold that LB 525 is constitutionally sound as the immunity granted thereunder is coextensive with the Fifth Amendment privilege against compulsory self-incrimination.

Very truly yours,

PAUL L. DOUGLAS
Attorney General

Lynne Fritz
Assistant Attorney General

A.J. Comparetto
08-12-2006, 04:25 PM
The Fifth Amendment Protection Against Self-Incrimination for Individuals
In pertinent part, the Fifth Amendment to the United States Constitution requires that "no person . . . shall be compelled in any criminal case to be a witness against himself . . . ." 10 Even before it ever became a part of our Constitution, the right against self-incrimination was essential to our collective sense of justice. While there are several reasons we hold the right against self-incrimination to be a legal core value, there is no single, clearly articulated justification that explains why we hold the concept so dear. Many of the reasons that have been articulated can be reduced to two central themes: first, a concern for personal integrity and privacy; and second, protecting individuals from the power of the government. To overcome these concerns, the government can grant immunity to a witness for giving testimony or producing documents. Otherwise, the individual retains the Fifth Amendment privilege against self-incrimination even when providing incriminatory evidence.

The Fifth Amendment privilege extends beyond oral testimony. It also applies to the production of documents, but it functions differently when it comes to documentary evidence than when testimonial evidence is at issue. Documents are often requested by a subpoena duces tecum, the tool by which a grand jury can compel testimony and the production of documents when it is investigating a potential crime.

A.J. Comparetto
08-12-2006, 04:26 PM
Whether or not any Fifth Amendment protection attaches to an individual's production of documents pursuant to a subpoena involves an analysis under the act of production doctrine. Developed in Couch v. United States, 11 Fisher v. United States, 12 and Andresen v. Maryland, 13 the doctrine ignores the proprietary aspects of documents. Instead, the act of production doctrine queries whether there will be testimonial aspects of handing over the documents, for which immunity must be granted. While people are no longer protected "against compelled production of preexisting materials that are incriminatory in content," they are protected against incriminating inferences that can be drawn from the act of producing them. 14 "Compliance with [a] subpoena tacitly concedes the existence of the papers demanded and their possession or control by the [target of the investigation]." 15

Producing documents alone does not violate the Fifth Amendment when the accused turns them over, unless the accused is impliedly admitting something incriminating by producing them, or providing the government with evidence it would not have otherwise obtained. In either case, the government must provide immunity. 16 Most recently, the Supreme Court explained in Hubbell v. United States, 17 that the act of producing self-incriminating documents has a compelled testimonial aspect worthy of Fifth Amendment immunity. 18 In short, the primary thrust of Hubbell was that the Fifth Amendment protects a witness from being prosecuted for crimes discovered only through the documents that were turned over. 19 It is clear that the Fifth Amendment continues to protect natural persons from their own self-incriminatory documents.

A.J. Comparetto
08-12-2006, 04:27 PM
The Fifth Amendment Protection Against Self-Incrimination in the Corporate Context
Corporations do not receive the protection of the Fifth Amendment's self-incrimination clause. Beginning at the turn of the 20th century, in the seminal case of Hale v. Henkel, 20 the U.S. Supreme Court decided that corporations could not invoke the protections of the Fifth Amendment because these organizations exist at the pleasure of the state and for the public good. That rationale, however, has subsequently been re-placed by an understanding that corporations do not represent any individual person. Thus, the self-incrimination clause, which prevents a witness from testifying against him or herself, does not apply to the corporation. Despite this shift in the underlying theory, the law is consistent: corporations do not receive self-incrimination protection.

A.J. Comparetto
08-12-2006, 04:29 PM
Kastigar v. United States, 406 U.S. 441 (1972), the leading Supreme Court case on the constitutionality of the federal witness immunity statute, 18 U.S.C. § 6002 (1994), offers some guidance on the extent to which the prosecution may make use of compelled statements. Under § 6002, a court may compel a witness to testify over a claim of the privilege against self-incrimination, "but 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." Id. In Kastigar, the petitioners, individuals found in contempt of court for failing to testify before a grand jury after the district court ordered them to testify under a grant of immunity pursuant to § 6002, claimed that their refusal to comply with the district court's order was justified by the fact that the statute's grant of immunity was not coextensive with the Fifth Amendment privilege against self-incrimination. The Court rejected this claim:

The statute's explicit proscription of the use in any criminal case of "testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information)" is consonant with Fifth Amendment standards. We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. . . . [The] sole concern [of the privilege] is to afford protection against being forced to give testimony leading to the infliction of penalties affixed to . . . criminal acts. Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection.


Kastigar, 406 U.S. at 453 (internal quotation marks omitted; second ellipse in original).

A.J. Comparetto
08-12-2006, 04:30 PM
The language of Kastigar thus suggests that an infringement of the Fifth Amendment privilege against self-incrimination occurs not by virtue of the prosecution's mere possession of or access to compelled testimony, but by the "use and derivative use" of such compelled testimony. Indeed, in dictum in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), the Court relied on this passage in Kastigar to distinguish between the operation of the Fifth Amendment's privilege against self-incrimination and the Fourth Amendment's prohibition on unreasonable searches and seizures: "Although conduct by law enforcement officials prior to trial may ultimately impair [the defendant's privilege against self-incrimination], a constitutional violation occurs only at trial. The Fourth Amendment functions differently. It prohibits unreasonable searches and seizures whether or not the evidence is sought to be used in a criminal trial, and a violation of the Amendment is fully accomplished at the time of an unreasonable governmental intrusion." 494 U.S. at 264 (internal quotation marks and citation omitted). (2)

The Fifth Circuit recently recognized this distinction between a prosecutor's permissible access to compelled information and the unconstitutional use of such information against a defendant at trial. In United States v. Hall, 1998 WL 518480 (5th Cir. Aug. 21, 1998), the district court required a capital defendant to submit to a psychiatric examination by the government if the defendant wished to present his own psychiatric evidence in mitigation of punishment. Hall claimed on appeal that the district court should not have required him to submit to the government's examination absent an order denying the prosecution access to the results of the examination by requiring that those results remain under seal until the trial's penalty phase, noting that such a safeguard had been imposed in previous cases. Id. at *11 (citing United States v. Beckford, 962 F. Supp. 748, 761 (E.D. Va. 1997); United States v. Haworth, 942 F. Supp. 1406, 1408-09 (D.N.M. 1996); United States v. Vest, (W.D. Mo. 1995)). The Fifth Circuit rejected the claim. While the court acknowledged that requiring that the results of a mental examination remain under seal until the penalty phase served "interests of judicial economy" by making it unnecessary for the court to determine whether the prosecution had made use of that material, it nonetheless concluded that "such a rule is not constitutionally mandated." Id. The court based this conclusion in part on the fact that the current version of Rule 12.2--which protects a defendant who is compelled to undergo a psychiatric examination by prohibiting the government from introducing the results of the examination as evidence before the defendant actually places his sanity in issue but does not forbid the prosecutor to obtain access to the results before that time--has "consistently been held to comport with the Fifth Amendment." Id. at *12 (citing United States v. Lewis, 53 F.3d 29, 35 n.9 (4th Cir. 1995); United States v. Stockwell, 743 F.2d 123, 127 (2d Cir. 1984)).

A.J. Comparetto
08-12-2006, 04:31 PM
Similarly, several courts of appeals have considered, in the context of civil suits against state or local officials, whether use of a compelled statement in a criminal proceeding is a necessary element of a claimed infringement of the privilege against self-incrimination. The weight of authority suggests that, to claim a violation of the privilege, a plaintiff must allege the use of a statement in a criminal proceeding. See Riley v. Dorton, 115 F.3d 1159, 1164 (4th Cir. 1997) ("[F]ollowing the plain text of the Amendment that '[n]o person . . . shall be compelled in any criminal case to be a witness against himself,' most courts refuse to find a Fifth Amendment violation even where statements were made, but were not actually used in a criminal proceeding" (alterations in original)), cert. denied, 118 S. Ct. 631 (1997); Weaver v. Brenner, 40 F.3d 527, 535-36 (2d Cir. 1994) (rejecting the view that act of compelling a statement from the defendant is alone sufficient to state a Fifth Amendment violation; adopting view that "use of the compelled statements against the maker in a criminal proceeding" and finding that statements were improperly used before the grand jury (internal quotation marks and citation omitted)); Mahoney v. Kesery, 976 F.2d 1054, 1061 (7th Cir. 1992) ("Fifth Amendment does not forbid the forcible extraction of information but only the use of information so extracted as evidence in a criminal case" (citation omitted)); Davis v. City of Charleston, 827 F.2d 317, 322 (8th Cir. 1987) (finding no Fifth Amendment violation where suspect's statements were not used against her during trial). The Ninth Circuit alone has held otherwise. See Cooper v. Dupnik, 963 F.2d 1220 (9th Cir.) (en banc) (holding that § 1983 claim for infringement of privilege against self-incrimination was stated by allegations that the plaintiff's statements were compelled, although the statements were never used), cert. denied, 506 U.S. 953 (1992). See generally Guiffre v. Bissell, 31 F.3d 1241, 1256 (3d Cir. 1994) (in qualified immunity context, concluding that plaintiff's Fifth Amendment claim against county officers who interrogated him did not rely on clearly established law; noting that the Ninth Circuit "broke new ground" in Cooper and that "[t]he dissenting judges in Cooper presented a persuasive argument that the Fifth Amendment privilege against self-incrimination is not violated until evidence is admitted in a criminal case"); Arnold H. Loewy, Police-Obtained Evidence and the Constitution: Distinguishing Unconstitutionally Obtained Evidence from Unconstitutionally Used Evidence, 87 Mich. L. Rev. 907, 921 (1989) (arguing that "unlike fourth amendment rights, fifth amendment rights are not violated unless and until the statement is used against the person making it").

A.J. Comparetto
08-12-2006, 04:32 PM
5th Amendment Privilege

Who can assert?
The 5th Amendment privilege against self-incrimination is personal, applying only to natural individuals. For documents, it protects only the compelled production of self-incriminating documents which are the personal property of the person claiming the privilege or papers in the person's possession in a purely personal capacity.(1) For testimony, it applies only to a compelled testimonial communication by the person claiming the privilege that incriminates that person. It does not prescribe the compulsion of all incriminating evidence.(2)

Corporations have no 5th Amendment privilege.(3) The number of owners or operators and the structural organization of a corporation do not alter its rights under the 5th Amendment. Courts have denied the availability of the 5th Amendment privilege to corporations with a sole stockholder(4) subchapter S corporations(5), professional corporations(6), and dissolved corporations.(7) The custodian of corporate records may be required to testify as to the authenticity of documents produced in response to a subpoena duces tecum and that the documents produced are those called for by the subpoena.(8) A custodian of corporate records may not assert the 5th Amendment privilege on the ground that the act of production of the documents is itself incriminatory.(9) However, he cannot be compelled to testify as to the current location of documents not produced and not in his possession if such testimony would be incriminating.(10)

In general, partnerships and other collective entities have been denied the use of the privilege against self-incrimination.(11) The ultimate determination is whether, based on all the circumstances, the particular organization "has a character so impersonal in the scope of its membership and activities that it cannot be said to embody or represent the purely private or personal interests of its constituents, but rather to embody their common or group interest only."(12)

A.J. Comparetto
08-12-2006, 04:33 PM
Non-personal business records of a sole proprietorship are treated differently because of the lack of a collective entity apart from the owner. In United States v. Doe, 465 U.S. 605 (1984), the Supreme Court differentiated between the contents of the documents and the act of producing them. There is no 5th Amendment privilege as to the contents of voluntarily-prepared business documents as there is no compelled self-incrimination. However, the act of producing these documents could, in some circumstances, be privileged.(13) When a sole practitioner submits documents in response to a subpoena, he is asserting that the documents exist and that he has possession and control. It also reveals the sole proprietor's belief that the documents are those called for by the subpoena.(14) The majority opinion in Doe suggests that even in cases where the production of business records by a sole proprietor is privileged, the Government could obtain the documents by granting immunity limited to the act of production, or by introducing evidence to establish that the documents called for by the subpoena exist and are in the possession of the person who received the subpoena.(15) In cases where immunity has been granted, attorneys would need an outside source to authenticate the documents if they intend to introduce them at trial.(16)

A.J. Comparetto
08-12-2006, 04:34 PM
An immunized witness cannot refuse to testify on the ground that his testimony will incriminate him. Immunity is a useful investigative tool, particularly in antitrust conspiracy cases where there is usually little probative physical evidence and few, if any, uninvolved witnesses. All Division attorneys should have a working knowledge of the relevant law and internal Department and Division policies and procedures before seeking immunity for any witness.

Two broad categories of immunity have been used in the federal system: "transactional" immunity and "use" immunity. Transactional immunity precludes the Government from prosecuting a witness for any offense (or "transaction") related to the witness' compelled testimony. Use immunity precludes the Government from using, directly or indirectly, a witness' compelled testimony in a prosecution of that witness.

Before 1970, prosecutors of antitrust offenses (as well as most other federal crimes) relied on transactional immunity to compel self-incriminating testimony.(43) Transactional immunity was of only limited usefulness to prosecutors because it provided no incentive for witnesses to be fully cooperative. Once a witness testified about any matter relating to an offense, he achieved full protection from prosecution for that offense, and had little to gain from providing additional details about it. Recognizing that problem, in 1970, Congress repealed the pre-existing federal antitrust immunity statute and other transactional immunity statutes, and adopted a general use immunity statute for all federal crimes. The new statute, commonly called the Witness Immunity Act of 1970, was part of the Organized Crime Control Act of 1970. It is codified at 18 U.S.C. §§ 6001-05(44) and should be read by all Division attorneys staffing grand jury investigations.

The constitutionality of the new immunity statute was upheld in Kastigar v. United States, 406 U.S. 441 (1972). The Supreme Court held that the statute was compatible and coextensive with the 5th Amendment because it provided immunized witnesses with substantially all the protection accorded by the 5th Amendment privilege. A witness testifying under the statute cannot incriminate himself by his testimony because the statute absolutely proscribes any direct or indirect use of the witness' testimony against the witness. Hence, the prosecutor is left in precisely the same position vis-a-vis the witness as if the witness had not testified. The Court observed that transactional immunity provides considerably broader protection than the 5th Amendment, and thus was not constitutionally required. The Court emphasized, however, that if an immunized witness is later prosecuted, the Government has the affirmative duty of proving that the incriminating evidence it proposes to use is "derived from a legitimate source wholly independent of the compelled testimony."(45)

The federal immunity statute is an attempt by Congress to accommodate two crucial yet competing interests: the Government's need to obtain testimony from culpable individuals to prosecute more culpable individuals, and the witness' right to refrain from incriminating himself. It grants the prosecutor a powerful tool for obtaining testimony, and imposes stringent limits on the use of such testimony.


Scope of Protection

A.J. Comparetto
08-12-2006, 04:35 PM
18 U.S.C. §§ 6001-6005 is the only immunity statute used by the Division. Its constitutionality is settled beyond any doubt. Requests for transactional immunity should be opposed automatically.

Use immunity is much more useful to prosecutors than transactional immunity. As noted above, witnesses testifying with transactional immunity have little incentive to provide detailed incriminating testimony concerning offenses for which they have exposure.(46) Use immunity, however, gives the witness an incentive to be as forthcoming as possible because the witness is guaranteed only that the information he supplies cannot be used against him. For every new piece of information he supplies, it may become more difficult for a prosecutor to demonstrate that a future prosecution of the witness is based entirely on independent evidence. If this is properly explained to immunized witnesses, considerable detailed inculpatory testimony can often be elicited.(47)

Use immunity is also useful to prosecutors because, unlike transactional immunity, it permits prosecution of immunized witnesses based on independent evidence. The Division is undertaking such prosecutions with increasing frequency. For example, where an immunized witness denies involvement in a conspiracy but is subsequently linked to the conspiracy by other evidence, the Division has prosecuted the witness both for the substantive offense and perjury.(48)

The immunity statute specifically states that immunized testimony cannot 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." Clearly, a witness who testifies falsely under an immunity order can be prosecuted for perjury or other false statement offenses. The perjury is not compelled testimony about a past crime that is subject to 5th Amendment protection. Rather, the false testimony is itself the crime, and is not subject to any conceivable constitutional protection. However, if a witness testifies with immunity and confesses that he committed perjury on a previous occasion, his confession cannot be used to prosecute him for the previous testimony.

It should be noted that the immunity statute not only bars use of a witness' testimony as substantive evidence against that witness but also bars use of the immunized testimony to impeach the witness at trial.(49)

The immunity statute only protects a witness from prosecution for offenses committed before the date of the witness' immunized testimony.(50) The witness' immunized testimony can always be used to prosecute him for crimes committed after the date of his testimony.

A grant of immunity before a federal grand jury will preclude use of that testimony in a state criminal prosecution just as a grant of state immunity will foreclose use by federal criminal prosecutors.(51) The second prosecution may, however, go forward, provided the second prosecutor is able to establish that all of the evidence he had against the defendant was derived from sources independent of the earlier immunized testimony.(52) The best practice to follow when there is a state criminal grand jury investigation running simultaneously with the federal antitrust grand jury investigation is to erect a "Chinese wall" to ensure that Division attorneys are not foreclosed from prosecuting an individual immunized by the state by having access to any of the state's evidence.

Source: http://justice.gov/atr/public/guidelines/206936.htm

A.J. Comparetto
08-12-2006, 04:37 PM
I commend the foregoing information to your reading.

Thanks for your patience:-)

A.J. Comparetto
08-12-2006, 05:01 PM
Check out this article on "Immunity" published by the District Attorney of Alameda County, California: http://www.acgov.org/da/pov/documents/immunity.htm