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The ‘Act of Production’ Doctrine and its Role in Fifth Amendment Cases

The Federalist Society

The ‘Act of Production’ Doctrine and its Role in Fifth Amendment Cases

The Fifth Amendment to the U.S. Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.” This privilege against self-incrimination has been interpreted to not only protect individuals from being compelled to testify, but also from being compelled to produce documents or other evidence that could be incriminating.

Origins of the Doctrine

In 1976, the Supreme Court first recognized the “act of production” doctrine in the case of Fisher v. United States

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. This doctrine holds that the actual act of an individual producing documents or materials in response to a subpoena can have a “testimonial aspect” that is protected by the Fifth Amendment.Specifically, by producing documents, an individual may be providing testimony about the existence, custody, and authenticity of those documents. This testimony can have an incriminating effect, separate from the contents of the documents themselves.The Court refined the doctrine further in United States v. Hubbell

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 in 2000. Hubbell had been granted immunity for his act of production, but the Court ruled that the government still could not use the produced documents to bring charges against him because it only knew of their existence due to his compelled testimony.

When the Doctrine Applies

Courts examine several factors to determine if the act of production is “testimonial” in a way that warrants Fifth Amendment protection

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:

  • Existence: Does producing the documents reveal their existence to the government?
  • Possession or Control: Does production show the individual’s control over or possession of the documents?
  • Authenticity: Does production verify that the documents are authentic?

If the government cannot establish with “reasonable particularity” that these facts are a “foregone conclusion,” then the act of production receives Fifth Amendment protection

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.However, if the government can already describe the materials and establish their existence, possession, and authenticity without the individual’s assistance, then the Fifth Amendment privilege does not apply.

Limits on the Doctrine

The act of production doctrine does not apply when documents are produced by a representative of a collective entity, like a corporation or partnership. Individuals acting as custodians for an organization cannot refuse to produce documents based on personal Fifth Amendment rights

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.There is also a “required records exception” – if documents are required to be kept by law for a public regulatory purpose, individuals must produce them, even if the act of production is incriminating

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.

Implications for Criminal Cases

The act of production doctrine has important implications in criminal cases. It can function as a shield against broad “fishing expedition” subpoenas when the government has little prior knowledge of the documents it is seeking.However, its protections are limited when the government can establish it already knows of the materials. Prosecutors often argue the materials were a “foregone conclusion” to defeat claims of Fifth Amendment privilege.The doctrine also does not help custodians of organizational records who are compelled to produce documents. But it remains an important protection for individuals resisting production of potentially incriminating personal documents.Understanding the contours of the act of production doctrine can assist defendants in determining when and how to invoke the Fifth Amendment privilege against self-incrimination in response to subpoenas for documents and materials. While the contents of pre-existing documents are not protected, the testimony involved in the act of producing them sometimes can be.

Key Cases on the Doctrine

  • Fisher v. United States (1976)
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    : Originated the doctrine, ruling that accountant’s tax documents were not privileged because their existence was already known to the IRS.

  • United States v. Doe (1984): Applied the doctrine to business records of a sole proprietorship, which were protected because their existence was not a “foregone conclusion.”
  • United States v. Hubbell (2000)
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    : Limited the use of documents produced under immunity because the government only knew of their existence through the compelled act of production.

  • In re Grand Jury Subpoena Duces Tecum (D.C. Cir. 2017): Ruled compelled decryption of hard drives was testimonial and protected by the Fifth Amendment.

Conclusion

The act of production doctrine is a nuanced but important part of Fifth Amendment jurisprudence. It provides protection even when the contents of documents are not inherently privileged. But its scope is limited by the required records exception, the collective entity doctrine, and instances where the government can establish prior knowledge of the documents’ existence and authenticity. Understanding the contours of this doctrine can assist defendants in asserting valid claims of Fifth Amendment privilege in response to subpoenas.

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