Unpacking the "Act of Production" Doctrine
Winter 2005

Your client has just received an expansive subpoena ordering him to produce potentially incriminating documents, and you begin to review the documents to decide whether your client must produce them. Could the Fifth Amendment provide protection for your client and allow him to avoid handing those documents over to the Government?

Ordinarily, the Fifth Amendment applies to the live testimony of a witness in a judicial proceeding. See U.S. CONST. amend. V (no person “shall be compelled in any criminal case to be a witness against himself”). However, your client’s very act of producing the documents to the Government – as opposed to their contents – may be entitled to Fifth Amendment protection.

In Fisher v. United States, the Supreme Court explained that there are “communicative aspects” to the production of documents.
425 U.S. 391, 410 (1976). By turning over documents in response to the subpoena, your client would wordlessly communicate that the documents exist and that they were in his possession. Likewise, the production would convey your client’s belief that the documents he produced are those described in the subpoena – a fact that the Government may use to authenticate them.

To receive protection under the “act of production” doctrine, your client’s act of producing the documents must be (1) compelled, (2) testimonial and (3) incriminating. Hiibel v. Sixth Judicial Dist. Ct., 124 S. Ct. 2451, 2460 (2004).

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