Document Subpoenas and the Moral Dilemma at the Heart of the Privilege Against Self Incrimination

(Excerpt) This Article will show that document subpoenas will nearly always compel “testimony.” This is so because the subpoena recipient is legally required to disclose to the party issuing the subpoena each and every document she has that is called for by the subpoena; and because, as Wigmore points out, the party issuing the subpoena will get the incriminating documents it seeks only if the subpoena recipient responds truthfully, disclosing every such incriminating document she has. And this means that the subpoena is compelling “testimony.” That is the core teaching of the Hubbell decision in which the Court cites to and quotes from Wigmore. However, the recent federal courts of appeals’ document subpoena decisions seem to have gone off course in their “testimony” analysis. They have in their own words “struggled” in their efforts to apply a loose Fourth Amendment type analysis—analogous to examining the amount of probable cause needed for a search warrant for documents— instead of the Fifth Amendment compelled “testimony” analysis clearly required by, and applied in, Hubbell. And these decisions seem not to grasp that subpoenas for incriminating documents will confront the subpoena recipient with the classic Fifth Amendment moral dilemma as surely as will compelled oral testimony. It is this author’s distinct impression after many years as a federal prosecutor and white-collar criminal defense lawyer that confusion about how the privilege applies to a subpoena for incriminating documents is shared by much of the practicing legal community. This second part of this Article endeavors to show, one hopes with clarity, that nearly every subpoena for incriminating documents compels testimony from the person responding to it and that responding to such a subpoena is therefore covered by the privilege, except in the extraordinarily unlikely circumstances that led the Supreme Court in Fisher to conclude, under the particular facts in the Fisher case, that the government was not “relying on the truth telling of the [subpoena recipients]” to get the evidence it sought.