Academic journal article Vanderbilt Law Review

Fishing for Clarity in a Post-Hubbell World: The Need for a Bright-Line Rule in the Self-Incrimination Clause's Act of Production Doctrine

Academic journal article Vanderbilt Law Review

Fishing for Clarity in a Post-Hubbell World: The Need for a Bright-Line Rule in the Self-Incrimination Clause's Act of Production Doctrine

Article excerpt


Americans have always taken particular pride in the right to be free from government intrusion into their homes and, metaphysically speaking, their minds. The authors of the Bill of Rights carved out this protective zone in the Fourth and Fifth Amendments to the United States Constitution.1 While modern Fourth Amendment protection has most often been interpreted as a privacy-based protection,2 the Fifth Amendment's Self-Incrimination Clause3 protects against government compulsion to implicate oneself in the commission of a crime. The development of the Fifth Amendment privilege reflects many of this nation's "fundamental values and most noble aspirations."4 These values and aspirations help protect individual citizens from excessive governmental intrusion and were foremost in the Framers' minds.5 By the same token, the proper enforcement of our laws is often dependent upon the introduction of incriminating evidence "independently secured through skillful investigation."6 Rule of law is no less important to the preservation of a free society than freedom from government intrusion.7 The interplay between these competing interests has IMAGE FORMULA5

produced much of the Supreme Court's jurisprudence concerning the privilege against self-incrimination. The Court has routinely held that a suspect's oral testimony, usually in the form of a compelled confession, may not be used as evidence against the suspect.8

This privilege has not been limited to oral testimony. Most often in the context of white-collar criminal prosecutions, the Supreme Court has held that the act of producing subpoenaed documents that incriminate the producing party may have communicative aspects that warrant Fifth Amendment protection.9 These white-collar crimes are "often buried and corrosive ventures where the prosecutor and the grand jury have little more than a hunch to direct their attention in the first instance."10 Therefore, the government typically makes liberal use of the subpoena power in connection with a white-collar crime grand jury investigation.11 The grand jury has at its disposal the power of the subpoena duces tecum, which summons an individual to produce documents before the grand jury.12

In certain instances, this communicative act of producing subpoenaed documents implicates the Fifth Amendment's Self-- Incrimination Clause. The current Supreme Court act of production jurisprudence holds that the Fifth Amendment protects the person asserting the privilege only from compelled self-incrimination when faced with a subpoena or summons to turn over incriminating documents.13 The act of production doctrine protects those communicative aspects of compliance with a subpoena, independent of the contents of the documents themselves.14 In other words, as long as the contents of the self-incriminating documents were voluntarily IMAGE FORMULA7

prepared, requiring the individual to turn over these documents is not the same as forcing that person to be a witness against himself.15

In 2000, the Supreme Court took up the act of production doctrine in a case stemming from the Whitewater Independent Counsel's investigation and prosecution of former Deputy Attorney General Webster L. Hubbell.16 The Supreme Court, in United States v. Hubbell, affirmed the decision of the United States Court of Appeals for the District of Columbia Circuit (the "D.C. Circuit") dismissing Hubbell's case on the ground that the Independent Counsel was unable to demonstrate with "reasonable particularity" that he had prior awareness of the documents sought when he issued the subpoena duces tecum.17 The Independent Counsel "was not investigating tax-related issues when he issued the subpoena," and he learned about Hubbell's crimes through the investigation into whether Hubbell might have obstructed the Whitewater investigation.18 Therefore, the documents produced by Hubbell provided the "necessary linkage" between his subpoena and subsequent indictment. …

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