The Fifth Amendment guarantees that no person shall be compelled in any criminal case to be a witness against himself. U.S. Const. amend. V. The act of producing documents in response to a subpoena may have incriminating testimonial aspects that implicate the Fifth Amendment. For example, if by producing documents in compliance with a subpoena, the witness admits that the documents exist, are in his possession or control, and are authentic. A testimonial communication in the context of producing records sufficient to provide Fifth Amendment protection is when the act of production itself communicates the custodian’s thoughts, as compared to strictly a physical act, and the testimonial communication is incriminating. It is a concept difficult to describe in the abstract and can be better explained by examples.
While not a criminal case, the D.C. Circuit found that requiring attorney Jeffrey Clark to respond and produce certain records essentially would force Clark to make admissions that would serve as evidence against him in an attorney disciplinary matter. The allegation was that Clark had drafted a letter falsely asserting that the Department of Justice had serious concerns about the integrity and outcome of the 2020 election in Georgia. The letter urged that a special session of the Georgia legislature be convened. The Office of Disciplinary Counsel of the DC Bar served Clark with a subpoena duces tecum for all documents of which Clark was aware containing “evidence of irregularities in the 2020 presidential election and that may have affected the outcome in Georgia, or any other state. ” Clark objected on the basis of the privilege against self-incrimination. In re Clark (D.C. Court of Appeals, Court Action, 2024).
The Court found that the subpoena called for what amounted to a testimonial admission by Clark as to the state of his knowledge or lack thereof of evidence supporting the truthfulness of his draft letter. The Court explained that basically what he produced would implicitly communicate his thoughts on the meaning and significance of any evidence of irregularities he might identify, and, possibly, what countervailing evidence he neglected or chose to disregard. (Or in simple terms, “please produce evidence or lack thereof, that shows you lied about claims of election irregularities.” )
A contemporary example of exercising the privilege in a digital context, are the facts of United States v. Doe (In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011), 670 F.3d 1335 (11th Cir. 2012) The case involved the government’s search for evidence of child pornography on computers that were seized. The subpoena required that the custodian produce unencrypted contents of hard drives. Doe argued that by decrypting the contents of the hard drives, he would be testifying that he rather than some other person, placed the contents on the hard drive, encrypted the contents, and could retrieve and examine them whenever he wished. While the case also related to the limited immunity that the government provided to Doe, the crux of the case relates to whether the act of production of decrypted digital media is testimonial.
The Court looked at two prior Supreme Court cases, Fisher v. United States, 425 U.S. 391 (1976) and United States v. Hubbell, 530 U.S. 27 (2000). Two ways that the act of production is not testimonial is 1) if the government by its subpoena is merely compelling some physical act and the individual is not called upon to make use of the contents of his or her mind and 2) if the government can show with reasonable particularity that at the time it sought to compel the act of production it already knew of the materials, the foregone conclusion doctrine.
The Court found that decryption and production of the hard drives would require the use of the contents of Doe’s mind and could not be fairly characterized as a physical act that would be nontestimonial in nature. Nor could the government establish that it was a foregone conclusion that it already knew of the materials. Cross-examination of the government’s computer examiner played some role in the outcome of this case, and it is likely that in advising to respond to a subpoena involving digital evidence, consulting a computer forensic expert may be necessary.
The act of producing documents in response to a subpoena may have a compelled testimonial aspect because it may implicitly communicate statements of fact, such as an admission that certain papers existed, were in [the person’s] possession or control, and were authentic. But the Supreme Court has recognized that incriminating evidence may be the byproduct of obedience to a regulatory requirement, such as filing an income tax return or maintaining required records. Marchetti v. United States 390 U.S. 62 (1968 ) The test for determining whether documents constitute required records that are not privileged under this exception, imposes three requirements: (1) the requirement that they be kept must be essentially regulatory, (2) the records must be of a kind which the regulated party has customarily kept, and (3) the records themselves must have assumed ‘public aspects’ which render them analogous to public documents.
In the case of In Re Grand Jury Subpoena Dated February 2, 2012, 741 F3d 339 (2nd. Cir. 2013.) Doe, the custodian refused to comply with a federal grand jury subpoena to produce records of foreign bank accounts, including the names of the account holders, the banks, the account numbers, the type of the account, and the maximum value of the account. This was all information that must by law be reported to the Commissioner of Internal Revenue pursuant to 31 CFR Section 1010.350 etc. and the Bank Secrecy Act (BSA), 31 USC 5311. The district court held Doe in contempt. After an analysis specifically of the record keeping regulation 31 CFR 1010.420, the Second Circuit upheld the order of contempt. “Because people owning foreign bank accounts are not inherently guilty of criminal activity, the BSA’s applicable recordkeeping requirement, designed to facilitate ‘criminal, tax, or regulatory investigations or proceedings, or [ ] the conduct of intelligence or counterintelligence activities,’ 31 U.S.C. § 5311, is still essentially regulatory.”
Another example is that of a recent case addressing subpoenas for patient records from a California psychologist. Dr . WIlson, who traveled to New Mexico once or twice a year to see patients. He was the state’s number two prescriber of Xanax and other benzodiazepines. After Wilson only partially complied with the subpoenas, the district court granted Wilson’s motion to dismiss on HIPAA and Fourth Amendment grounds. The Tenth Circuit, however, considered that psychologists in New Mexico must keep records of all prescriptions in patient files, and that the regulatory scheme was not aimed primarily at criminal activities, or at groups inherently suspect of criminal activities. As a result, the Court reversed the district court’s order. United States v. Wilson, 23-2073 (10th Cir. Apr 15, 2024)
These cases draw from Baltimore City DSS v. Bouknight, 493 U.S. 549 (1990). “The Court has on several occasions recognized that the Fifth Amendment privilege may not be invoked to resist compliance with a regulatory regime constructed to effect the State’s public purposes unrelated to the enforcement of its criminal laws. ..[w]hen a person assumes control over items that are the legitimate object of the government’s noncriminal regulatory powers, the ability to invoke the privilege is reduced.”
If anything, a response to a subpoena to produce records requires careful analysis, rather than a knee jerk reaction to comply. There are many questions that must first be answered, including whether the custodian of the records holds a privilege against self-incrimination. Courts should consider an argument that the privilege applies, but there must be a good-faith effort to demonstrate why the act of producing the records contains a testimonial statement that tends to incriminate the individual who has been subpoenaed.