There are still several ways the government could force Flynn to provide relevant documents. The first would be to circumvent the Fifth Amendment protection discussed above by simply limiting the subpoena to documents that can be described as an “appropriate specificity.” This would require independent knowledge of the existence and authenticity of the documents, as well as Flynn`s control over them. In such a case, the presentation of the documents would no longer be testimony and, therefore, the communication itself would not be incriminating. Similarly, the content of private documents is not protected by the Fifth Amendment unless the government forces their creation or requires the witness to confirm the veracity of their incriminating content. [19] Otherwise, the government may force the submission of private documents. [20] For example, if a document was voluntarily prepared prior to the issuance of a subpoena, it must be submitted in response to the subpoena because it is not a forced declaration within the meaning of the Fifth Amendment. Only if the government can make such a demonstration will the production not be considered forced testimony protected by the Fifth Amendment. [46] The final strategy, and the one most likely to successfully circumvent Fifth Amendment protections, is to subpoena documents held by Flynn`s companies, since the Fifth Amendment`s protection against self-incrimination does not extend to corporations. If the requested records belong to a company and not to an individual (a matter of threshold), the creation of that document is simply an act of custody without Fifth Amendment effect. Factors that can determine whether a document is a professional or personal document include the creator of the document, its location, its business purpose, etc. United States v. Hubbell, 530 U.S. 27 (2000) was a U.S.
Supreme Court case involving Webster Hubbell, who had been charged with various tax charges, as well as mail fraud and remittances, based on documents the government had subpoenaed. [1] The Fifth Amendment provides that no one “shall be compelled to be a witness against himself in criminal proceedings.” The Supreme Court has applied the doctrine of the “Act of Production” since 1976. According to this doctrine, a person can invoke his rights under the Fifth Amendment against the presentation of documents only if the act of preparing the documents is in itself incriminating. When asked if a company can invoke the Fifth Amendment and refuse to produce the documents required by the grand jury subpoena, most defense lawyers answer “no.” And they would be right: a corporation — any legal entity such as a corporation, partnership, or L.L.C. (collectively, the “Company”) — has no privilege against self-incrimination under the Fifth Amendment, whether or not the content of the subpoenaed documents incriminates the Company. [1] In addition, a person who prepares documents on behalf of a corporation, except in certain cases involving sole proprietorships,[2] generally has no protection under the Fifth Amendment, even if the content of the documents summoned criminalizes him or her personally. In both cases, the company representative must submit the incriminating documents to the government. Such “forced testimony,” the court said, did not depend on the content of the documents requested, but on the “testimony inherent in the preparation of those documents.” However, the court also pointed out that if the SEC could find alternative sources for the documents it requested, if the act of creating documents involved communicative aspects, mandatory compliance with such a subpoena could run counter to fifth Amendment “act of production” protections. the Fifth Amendment would not prevent the government from collecting them. While the Fifth Amendment does not protect against the submission of existing documents, mandatory compliance with such a subpoena may run counter to the Fifth Amendment `act of production` if the act of compiling documents has communicative aspects. Indeed, responding to a subpoena may incriminate the defendant by “tacitly admitting the existence of the requested documents and their possession or control by the [person summoned]”. Fisher v.
United States, 425 U.S. 391, 410 (1976). In rejecting the indictment, the court argued that the existence and location of the documents requested by the government at the time the subpoena was issued to Hubble was not a “foregone conclusion.” The court stressed that the government cannot prosecute individuals on the basis of incriminating documents obtained through “fishing expeditions” conducted with subpoenas from the grand jury duces tecum – subpoenas for the submission of evidence. [41] When a subpoena is so broad, the Court found, the testimony aspects of production may be relevant. Hubble`s compilation and submission of the records, the court added, amounted to responding to a series of interrogations in which a witness was asked to identify and disclose the existence and location of specific documents that fit certain general descriptions. In response to the subpoena, the court said Hubbell was required to make extensive use of “self-minded content” to identify the documents, compiling parts of the government`s lawsuit against itself. This, the court said, clearly made his compliance with the subpoena “testimony” within the meaning of the Fifth Amendment. While the Fifth Amendment originally applied only to federal courts, the U.S. Supreme Court included the 5th Amendment in the state in part through the due process clause of the Fourteenth Amendment. The right to grand jury indictment was not included, while the right against double jeopardy, the right against self-incrimination and protection against arbitrary removal of private property were incorporated into States without adequate compensation. Finally, subpoenas to appear before a grand jury sometimes require witnesses to create certain types of documents, including compilations. A subpoena may require a list of information that may or may not be based on the content of existing written documents in the witness`s possession.
These may include lists of all bank accounts, certain items, relationships with other people, interests in certain investments, or names of legal entities in which the witness has an interest. In all of these examples, the act of producing the information summoned would be a witness and, if potentially incriminating, protected by the Fifth Amendment. Fisher spawned the “act of production doctrine,” according to which the Fifth Amendment can protect against production, where the act of production would be forced, witnessing, and incriminating. .
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