April 7, 2004
PRIVILEGE AGAINST SELF INCRIMINATION
IN THE PRODUCTION OF DOCUMENTS
By: George Coppolo, Chief Attorney
Kevin E. McCarthy, Principal Analyst
You asked for a summary and copy of United States v. Hubbell, 530 U.S. 27 (2000) and a discussion of related Connecticut cases.
The Fifth Amendment to the U.S. Constitution declares that “[no person] shall be compelled in any criminal case to be a witness against himself.” The privilege against self-incrimination applies in both federal and state cases, and there is a parallel provision in the state constitution.
The U.S. Supreme Court had held, prior to Hubbell, that the word “witness” in the Fifth Amendment limits the types of communications that are covered by this privilege to those that are “testimonial.” In Hubbell, the Court held that the act of producing subpoenaed documents may have a testimonial aspect, and thus may be protected by the Fifth Amendment. It reasoned that the act of producing the documents, as well as a custodian's compelled testimony about whether he has produced everything demanded, may communicate information about
the documents' existence, custody, and authenticity. It concluded that the constitutional privilege against self-incrimination applies to the testimonial aspect of a response to a subpoena seeking discovery of potentially incriminating evidence. On the other hand, the Court noted that Hubbell could not have avoided complying with the subpoena merely because the demanded documents contained incriminating evidence.
It appears the key to determining whether the act of producing documents and records is testimonial hinges on whether (1) the government can independently confirm their existence and authenticity, and (2) the act of production itself communicates information about the existence, custody, and authenticity of the documents sought. If the government cannot independently confirm the existence and authenticity of the records sought, and if their production communicates information about the record's existence, custody, and authenticity, the person who is the subject of the subpoena may claim a Fifth Amendment privilege and refuse to comply. However, the privilege is personal. The custodian of corporate records may not withhold them on the grounds that they might incriminate him (Bellis v. U.S., 417 U.S. 85 (1974)).
Article first section 8 of the Connecticut Constitution provides in part: “No person shall be compelled to give evidence against himself.”
The Connecticut Supreme Court has construed the state's privilege against self-incrimination as having the same meaning as the privilege under the U.S. Constitution, in spite of differences between their texts. However, at least one trial court subsequently held that the state constitutional privilege protects a defendant from being compelled to produce personal books and records because of the broader language in Connecticut's constitution coupled with the historical meaning of such language.
U.S. V. HUBBELL
The case arose out of the second prosecution of Webster Hubbell, begun by the Independent counsel appointed in 1994 to investigate possible violations of federal law relating to the Whitewater Development Corporation. In the first prosecution, Hubbell pleaded guilty to mail fraud and tax evasion charges and was sentenced to 21 months in prison. In the plea agreement, he promised to provide the Independent counsel with “full, complete, accurate, and truthful information” about matters relating to the Whitewater investigation.
The second prosecution resulted from the Independent counsel's attempt to determine whether Hubbell had violated that promise. While Hubbell was incarcerated, the Independent counsel served him with a subpoena duces tecum calling for the production of 11 categories of documents before a grand jury sitting in Little Rock, Arkansas. The demand was very broad. For example, under one category the subpoena commanded production of all documents reflecting, referring, or relating to any direct or indirect sources of money or other things of value received by Hubbell or his family, including but not limited to the identity of employers or clients of legal or any other type of work.
Hubbell appeared before the grand jury and invoked his Fifth Amendment privilege against self-incrimination. In response to questions by the prosecutor, he initially refused to state whether he had documents responsive to the subpoena in his possession, custody, or control. The prosecutor then produced an order, which had previously been obtained from the District Court under federal law, directing Hubbell to respond to the subpoena and granting him immunity “to the extent allowed by law.”
Hubbell then produced 13,120 pages of documents and records. He responded to a series of questions and established that those were all of the documents in his custody or control that were responsive to the subpoena, with the exception of a few documents he claimed were shielded by the attorney-client and attorney work-product privileges. The Independent counsel used the documents' contents in an investigation that led to an indictment of Hubbell on tax and fraud charges.
Procedural History in Lower Courts
The District Court found that the compelled act of producing the documents required Hubbell to make communications as to their existence, possession, and authenticity. It dismissed the indictment on the grounds that the Independent counsel's use of the documents violated 18 U.S.C. § 6002, which provides for use and derivative-use immunity, because all of the evidence he would offer against Hubbell at trial derived either directly or indirectly from the testimonial aspects of Hubbell's immunized act of producing the documents.
The Independent counsel appealed. The Court of Appeals vacated and remanded the case, directing the District Court to hold a hearing to determine the extent of the government's knowledge of Hubbell's fiscal affairs when it issued the subpoenas. Under the Court of Appeals order, if the government could not demonstrate that it was aware, with reasonable particularity, that the documents it sought existed and were in Hubbell's possession, the indictment would be considered tainted.
On remand, the Independent counsel acknowledged that he could not satisfy the “reasonable particularity” standard. He entered into a conditional plea agreement with Hubbell, which provided for the dismissal of the charges unless the Supreme Court's decision made it reasonably likely that Hubbell's immunity would not pose a significant bar to his prosecution. The agreement also provided for the entry of a guilty plea and a sentence that would not include incarceration if the Supreme Court reversed and issued an opinion that was sufficiently favorable to the government.
The Independent counsel then appealed to the U.S. Supreme Court to determine the precise scope of a grant of immunity with respect to the production of documents in response to a subpoena. The government argued that Hubbell's act of producing ordinary business records was insufficiently “testimonial” to (1) support a Fifth Amendment privilege claim or (2) be covered by the grant of immunity. It emphasized that the testimonial aspect of a response to a subpoena did nothing more than establish the existence, authenticity, and custody of items that were produced. It asserted that it would not have to refer to Hubbell's act of production in order to prove the existence, authenticity, or custody of any documents that it might offer in evidence at a criminal trial. In fact, it disclaimed any need to introduce any of the documents produced by Hubbell into evidence in order to prove the charges against him.
Supreme Court Decision
Legal Background. The Supreme Court granted the Independent counsel's petition for a writ of certiorari and began its review by summarizing the controlling legal principles. It noted that the word “witness” in the Fifth Amendment limits the types of compelled communications that are subject to the privilege against self-incrimination to those that are “testimonial” in character, citing Andresen v. Maryland, 427 U.S. 463 (1976) and Doe v. United States, 487 U.S. 201 (1988).
The Court also noted that it is settled law that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief, if the creation of the documents was not “compelled” within the meaning of the privilege. It pointed to Fisher v. United States, 425 U.S. 391, (1976), which dealt with summonses issued by the Internal Revenue Service (IRS) seeking working papers used to prepare tax returns. Because the papers had been voluntarily prepared before the summonses were issued, the Court held that they could not be said to contain compelled testimonial evidence by the taxpayers or anyone else. Accordingly, the taxpayer could not avoid complying with the subpoena merely by asserting that the evidence which he was required to produce contained his own or someone else's incriminating writing. Similarly, the Court noted that Hubbell could not avoid complying with the subpoena merely because the demanded documents contained incriminating evidence, whether written by others or voluntarily prepared by him.
On the other hand, the Court noted that earlier cases, including U.S. v. Doe, 465 U.S. 605 (1984) and Fisher, made it clear that the act of producing documents in response to a subpoena may have a compelled testimonial aspect. The Court had held that “the act of production” itself may implicitly communicate “statements of fact.” By “producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic.” Moreover, the court observed that when the custodian of documents responds to a subpoena, he could be compelled to take the witness stand and answer questions designed to determine whether he has produced everything demanded by the subpoena. In the Court's view, the answers to those questions, as well as the act of production itself, may communicate information about the existence, custody, and authenticity of the documents. According to the Court, whether the constitutional privilege protects the answers to such questions, or protects the act of production itself, is distinct from the question of whether the document's contents are themselves incriminating (Hubbell at 36, 37).
The Court observed that while the phrase “in any criminal case” in the text of the Fifth Amendment might have been read to limit the privilege to compelled testimony that is used in the trial itself. But the court pointed out that it has long been settled that its protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not introduced into evidence. The court had previously held that the Fifth Amendment privilege “…not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime” (Hoffman v. United States, 341 U.S. 479, 486 (1951)). Compelled testimony that communicates information that may “lead to incriminating evidence” is privileged even if the information itself is not incriminating (Doe at 208, n. 6).
Finally, the Court discussed the grant of immunity under 18 U.S.C. § 6002, which the District Court had granted to Hubble, and which covers both the use and derivative use of the subpoenaed information. The Court noted that it had upheld the constitutionality of this law in Kastigar v. U.S. 406 U.S. 441 (1972) because the scope of the immunity it provides is coextensive with the scope of the constitutional privilege against self-incrimination.
Court's Reasoning. According to the Court, the disagreement between the parties focused entirely on the testimony inherent in the act of producing the documents demanded by the subpoena, as distinct from the contents of the documents. The question, according to the Court, was whether the government had already made “derivative use” of the testimonial aspect of production of these documents in obtaining the indictment against Hubbell and in preparing its case for trial.
The Court concluded from the subpoena itself that the prosecutor needed Hubbell's help to identify potential sources of information and to produce those sources. According to the Court, given the breadth of the description of the documents demanded by the subpoena, the collection and production of the materials demanded was tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions. The Court noted that the assembly of hundreds of pages of material to respond to the single demand regarding sources of money was the functional equivalent of preparing an answer to a detailed written interrogatory or a series of oral questions at a discovery deposition. The Court found it undeniable that entirely apart from the contents of the materials that Hubbell produced, providing a catalog of existing documents fitting within any of the broadly worded subpoena categories could provide a prosecutor with a “lead to incriminating evidence,” or “a link in the chain of evidence needed to prosecute.”
The record made it clear to the Court that this is what happened to Hubble. The documents were produced before a grand jury to aid the Independent counsel's attempt to determine whether Hubbell had violated a commitment in his first plea agreement. The use of those sources of information eventually led to the return of an indictment by another grand jury for offenses that apparently were unrelated to the plea agreement. What the District Court characterized as a “fishing expedition” did produce a fish, according to the Court, but not the one that the independent counsel expected to hook (Hubbell, at 42).
The Court found that the testimonial aspect of Hubbell's act of producing subpoenaed documents clearly was the first step in a chain of evidence that led to his prosecution. The documents did not magically appear in the prosecutor's office like “manna from heaven”. Instead, they arrived there only after Hubbell asserted his constitutional privilege, was granted immunity, and pursuant to District Court's order took the steps necessary to provide the prosecutor with an accurate inventory of the many sources of potentially incriminating evidence sought by the subpoena. The Court found that it was only through Hubbell's truthful reply to the subpoena that the government received the incriminating documents that it used in the investigation that led to the indictment (Hubbell at 42, 43).
The Court concluded that the constitutional privilege against self-incrimination protects the target of a grand jury investigation from being compelled to answer questions designed to elicit information about the existence of sources of potentially incriminating evidence. That privilege has the same application to the testimonial aspect of a response to a subpoena seeking discovery of those sources.
The government had argued that communications inherent in Hubbell's production of ordinary business records were insufficiently testimonial to support a claim of privilege because it was a “foregone conclusion” under Fisher that any businessman would possess such records. The Court held that the government had misread Fisher and ignored its subsequent decision in U.S. v. Doe. It noted that the facts of Hubbell were clearly different from Fisher. While in Fisher the government already knew that the documents were in the attorneys' possession and could independently confirm their existence and authenticity through the accountants who created them, in Hubbell the government did not show that it had any prior knowledge of either the existence or the whereabouts of the documents ultimately produced by Hubbell. This deficiency could not be cured through the government's overbroad argument that a businessman such as Hubbell will always possess general business and tax records that fall within the broad categories described in this subpoena. The Court noted that the subpoenas in Doe also sought several broad categories of general business records, yet the Court upheld the District Court's finding that the act of producing those records would involve testimonial self-incrimination (Hubbell at 45).
Because Hubbell's act of production had a testimonial aspect, at least with respect to the existence and location of the documents sought by the subpoena, the Court concluded that Hubbell could not be compelled to produce those documents without first receiving a grant of immunity. Under Kastigar, Hubbell's motion to dismiss the indictment on immunity grounds would have to be granted unless the government proved that the evidence it used in obtaining the indictment and proposed to use at trial was derived from legitimate sources “wholly independent” of the testimonial aspect of Hubbell's immunized conduct in assembling and producing the documents described in the subpoena. The Court pointed out that the government did not claim that it could make such a showing. Rather, it contended that its prosecution of Hubbell must be considered proper unless someone--presumably Hubbell--shows that there is some substantial relation between the compelled testimonial communications implicit in the act of production (as opposed to the act of production standing alone) and some aspect of the information used in the investigation or the evidence presented at trial. The Court concluded that it could not accept this argument without overturning Kastigar and according ordered the indictment dismissed.
The discussion of Connecticut cases is based in part on “Self-Incrimination: A Comparative Analysis of the Federal and Connecticut Constitutional Provisions,” 14 Quinnipiac Law Review, (Winter 1994), 1-32.
State Supreme Court Case
The leading modern case interpreting Connecticut's constitutional privilege against self-incrimination is State v. Asherman (193 Conn. 695, cert. denied 470 U.S. 1050 (1985)). In this case, the defendant appealed his conviction for the murder of his friend, whose body was found with multiple stab wounds and bite marks on the shoulder. Asherman claimed that during an evening walk to a mountain near the victim's home, some men attacked them and killed the victim. The defendant
stated that he fled the scene, became lost, and spent the night alone in the woods. The next morning the defendant alerted the family and led them to the site of the victim's body. Police immediately suspected Asherman of murder due to inconsistencies in his story and visible blood stains on his mouth and clothing.
Pursuant to a court order, Asherman was compelled to permit the state to take wax impressions and photographs of his teeth so that the state's dental expert could compare his dentition to the bite marks found on the victim. Asherman protested, asserting that the order violated his state constitutional rights, which protected him from “giving evidence.” He argued that the state privilege against self-incrimination afforded broader protection than the federal privilege due to the textual difference and urged the court to construe the word “evidence” as including both testimonial and non-testimonial matter. Thus, the state privilege would protect him against yielding dental impressions.
The Asherman holding that the privilege against self-incrimination is the same under the state and federal constitutions was extended in State v. Castonguay, 218 Conn. 486 (1991), where the court considered whether transcript testimony, given by a defendant voluntarily at his first trial, could be used as evidence in a subsequent trial at which he chose not to testify. He argued that its use was tantamount to compelling him to give evidence against himself.
Rejecting the defendant's argument, the court held that the history and purpose of the privilege did not provide a basis for such a distinction. It stated that the privilege became well established in common law and served to protect against “any activity performed for the purpose of communicating.” It concluded that the scope of the state right was identical to that of the federal privilege, neither of which afforded protection to such evidence. It also mentioned that several other states have language in their constitutions similar to the “giving evidence” phrase, but that most state courts do not interpret their state provisions more broadly than the federal provision.
The court, relying on Asherman, rejected the defendant's argument that the textual distinction between the state and federal privileges permits the court to construe the state provision more broadly. Noting that the defendant had not provided any historical argument, the court upheld use of the defendant's prior testimony because its admission at the second trial 'did not physically or morally compel the defendant to do anything at all, much less incriminate himself” (Id. at 236).
Subsequent Trial Court Cases
In Burritt Interfinancial Bancorporation v. Brooke Pointe Associates, Inc., 42 Conn. Sup. 445 (1992), the issue was whether the state constitution protects civil defendants from having to disclose books and papers. The plaintiff obtained a deficiency judgment in July 1991 against Brooke Pointe Associates and three individual defendants for approximately $1.9 million. At the time, the individual defendants were also being prosecuted in federal district court for several criminal offenses, including bank fraud.
The plaintiff subsequently moved for permission to examine numerous documents, including all cancelled checks, contracts, deeds, notes and conveyances from the judgment debtors. In response, the defendants filed written motions for protective orders. They did not wish to surrender these papers because the disclosure might result in further prosecution by the state. The issue was thus whether the compelled production of these documents violated the defendants' rights against self-incrimination as protected by the state constitution.
The plaintiff argued that production of the documents was constitutionally permissible because papers, not oral testimony, were being compelled. The plaintiff further asserted that the “Fifth Amendment's protection is implicated only if the act of complying with the production demand testifies to the existence, possession, or authenticity of the things produced.” They argued that the defendants' rights against self-incrimination were not being violated because they were not being compelled to testify orally nor were they required to authenticate the documents to be examined (Burritt at 452).
The court held that the state constitution's language was broader than that of the Fifth Amendment and protected the defendants from being compelled to submit the requested checks and papers to the plaintiff. The court observed that the Asherman court had said that the purpose of incorporating the privilege against self-incrimination in the state constitution was to place this right, as it was known at common law at the time, beyond the legislature's ability to abolish it. Thus, the issue was to determine what the common law was and whether it protected the production of written documents in a forfeiture action when the state constitution was adopted in 1818. The court found that at that time, at common law, a person could not be compelled to produce any written documents that might be evidence against him.
The court concluded that, if article first, section eight of the state constitution is to be construed based on the common law at the time the 1818 Constitution was written, then “very little [was] discoverable [at common law], for almost all discovery powers were then in the equitable jurisdiction.” It suggested that the 1818 constitution was probably meant “to preserve the privilege against self-incrimination as it applied to both the common law and equitable jurisdictions at the time.” This privilege protected books and papers as well as testimonial communications (Burritt at 456).
The court then reviewed English and American cases, tracing the privilege's origins to seventeenth century England, when it was used as a protest against the inquisitorial courts during the reign of the Stuarts. He noted that the rule became rooted in both equity and common law. It quoted Swift's Digest, which held that a witness was not required to produce a writing in evidence if it would incriminate him, expose him to a penalty, or forfeiture, or subject him to a civil action. He quoted Swift's statement “for a man is not compellable to produce evidence against himself.” The opinion pointed out that the language of the last sentence is essentially identical to the language of article first, section eight of the 1818 Constitution. Based on the legal historical background and the phrasing of the constitutional privilege, the court held that the defendants could not be compelled to produce books and records, contents of which may incriminate them.