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38.1.2.4
(08-11-2004)
Requesting Immunity for Acts of Production
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Where grand jury subpoenas were issued to a sole proprietor demanding production of business records, the Supreme Court held
that contents of the records are not privileged. Where preparation of business records was voluntary, there is no compulsion,
and the Fifth Amendment is not violated. A subpoena that demands production of documents does not compel oral testimony; nor
would it ordinarily compel the taxpayer to restate, repeat or affirm the truth of the contents of the documents sought. The
Court held further that the act of production was protected by the Fifth Amendment privilege and could not be compelled without
a statutory grant of use immunity pursuant to 18 U.S.C. §§ 6002 and 6004.
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The testimonial aspects of the act of production go to the existence, possession, and authenticity of the records being sought.
That is, merely by producing subpoenaed or summoned records, the witness provides an admission that:
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The records called for in the subpoena or summons exist
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Such records are in the possession and control of the witness
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The records being produced are the records described in the subpoena or summons
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