October 23, 2018

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Exploring the Boundaries of the Fifth Amendment

The announcement by Michael Flynn, the former national security adviser, that he wouldn't respond to a subpoena from the Senate Intelligence Committee—requesting a list of contacts with Russian officials—had TV news producers (and members of Congress) scrambling to get Fifth Amendment experts on the line. But Flynn wasn't breaking new ground: Two years earlier, when former top aides to New Jersey Gov. Chris Christie refused to provide documents to a state investigative committee, they also cited their Fifth Amendment rights against self-incrimination. Their refusal was upheld in a 98-page opinion by a New Jersey Superior Court judge, who found that the subpoena unconstitutionally compelled testimonial evidence. In doing so, the judge relied on the "act of production" doctrine, which holds that regardless of content, the act of producing documents may itself have a testimonial, and thus incriminating, quality.

The "act of production" doctrine gestated in the 1970s, when the absolute protection traditionally afforded "private books and papers" gave way to a more nuanced evaluation of whether the act of selecting and producing material, regardless of its content, could be construed as "testimonial" in nature. The doctrine officially arrived with the U.S. Supreme Court's decision in Fisher v. United States, 425 U.S. 391 (1976), where the court explained that "an act is testimonial when the accused is forced to reveal his knowledge of facts relating him to the offense or from having to share his thoughts and beliefs with the government." Still, the court declined to find Fifth Amendment protection for the tax preparation documents at issue in that case, in large part because their "existence, custody, and authenticity" were a"foregone conclusion."

Republished with permission from the Connecticut Law Tribune.  Originally published here.

Read the other articles in the series:

Restitution for the Corporate Victim

Fourth Amendment Exception Allows Customs to Search Personal Devices.

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About this Author

James Glasser, partner, Wiggin and Dana

James I. Glasser is a Partner in the New Haven and New York offices of Wiggin and Dana and is Chair of the Litigation Department and Co-Chair of the International Trade Compliance Practice Group. Mr. Glasser represents clients in complex civil litigation and in investigations and prosecutions conducted by the Department of Justice, the Securities and Exchange Commission, FINRA, the State Department, the Commerce Department, State Attorneys General, and other federal and state regulators. He also conducts regulatory investigations to ensure compliance in  areas of law including: health care...

Joseph Martini, Internal Investigations, Wiggin and Dana Law Firm, Washington DC, New York

Joseph W. Martini, is a Partner and Chair of the firm's White Collar Defense, Investigations and Corporate Compliance Group. In 2014, 2015 and 2016, the White Collar Group was awarded the Litigation Department of the Year for Government Investigations and Corporate Compliance by the Connecticut Law Tribune. Mr. Martini, a member of the firm's Executive Committee, maintains offices in New York, Stamford, and Washington, D.C.

Mr. Martini is often retained by entities facing crisis situations to conduct internal investigations, and has regularly done so in the financial, health care, manufacturing, construction and defense industries. Mr. Martini also has experience representing clients in matters involving the United Nations, and before hospital boards of directors and hearing panels in connection with disciplinary matters and other administrative proceedings. He also advises educational institutions in connection with Title IX investigations.

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