Any lawyers care to weigh in on Stepian using the Fifth Amendment on a document subpoena? [View all]

[markpkessinger]

The lawyer for Bill Stepian, Chris Christie's campaign manager, has announced that Stepian will invoke the Fifth Amendment and not comply with the subpoena demanding production of certain documents, which he received from the NJ legislature's joint committee investigating the GW Bridge access lane closings and related scandals. It sounded strange to me that he could do that, so I started trying to research the question myself. I came across the article below in the online journal, California Lawyer. If I am reading the article correctly, it sounds to me like Stepian is on very shaky legal ground in invoking the Fifth Amendment to avoid producing documents. Is my understanding correct?

[font size=5]Taking the Fifth with Documents[/font]
by Anthony A. De Corso | March 2012

< . . . . > (T)here is no Fifth Amendment privilege to refuse to produce subpoenaed documents on the ground their contents are self-incriminating; courts hold that such information is not "compelled testimony." However, as explained below, there is a crucial corollary: In certain circumstances the act of producing such documents may indeed be entitled to protection under the Fifth Amendment. - See more at: http://www.callawyer.com/Clstory.cfm?eid=920910#sthash.YO0uURU3.dpuf

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Fifth Amendment Privilege
Well-established case law holds that if a person voluntarily creates and possesses self-incriminating documents, he or she may nevertheless have to produce them in response to a subpoena. That is the law notwithstanding the privilege against self-incrimination, because the creation of such documents is not "compelled" within the meaning of the Fifth Amendment. (See Fisher v. United States, 425 U.S. 391, 409-410 (1976).) Even so, the act of producing documents may compel a person to implicitly or inherently admit that responsive papers exist, are in that person's possession or control, and are authentic. In such circumstances, the production of documents is testimonial and, because compelled, may be privileged under the Fifth Amendment. Whether the privilege applies turns on whether the act of production is likely to be incriminating. (See United States v. Hubbell, 530 U.S. 27, 36-37 (2000) (affirming dismissal of charges, based on Fifth Amendment violation.)

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Business Entities
Under the "collective entity doctrine," the Fifth Amendment privilege does not apply to artificial entities (such as corporations) or to their custodian of records who claims that producing documents will incriminate the custodian personally. Such entities act only through agents. Allowing these agents to assert the privilege as to the production of the entities' records would effectively extend the privilege to the entities themselves. (See Braswell v. United States, 487 U.S. 99 (1988).) Moreover, when individuals voluntarily assume the custodian position, they take on the duty to produce its records upon proper demand (Braswell, 487 U.S. at 109-10 (applying collective entity rule to president/sole shareholder of small corporation); United States v. Blackman, 72 F.3d 1418, 1426-27 (9th Cir. 1996) (applying same rule to defendant partner of law firm)). - See more at: http://www.callawyer.com/Clstory.cfm?eid=920910#sthash.YO0uURU3.dpuf
Well-established case law holds that if a person voluntarily creates and possesses self-incriminating documents, he or she may nevertheless have to produce them in response to a subpoena. That is the law notwithstanding the privilege against self-incrimination, because the creation of such documents is not "compelled" within the meaning of the Fifth Amendment. (See Fisher v. United States, 425 U.S. 391, 409-410 (1976).) Even so, the act of producing documents may compel a person to implicitly or inherently admit that responsive papers exist, are in that person's possession or control, and are authentic. In such circumstances, the production of documents is testimonial and, because compelled, may be privileged under the Fifth Amendment. Whether the privilege applies turns on whether the act of production is likely to be incriminating. (See United States v. Hubbell, 530 U.S. 27, 36-37 (2000) (affirming dismissal of charges, based on Fifth Amendment violation.)

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