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Parties and Records Protected by Privilege

The Fifth Amendment to the U.S. Constitution provides that no person shall be compelled in any criminal case to be a witness against himself/ herself.  The privilege against self-incrimination enables maintenance of human privacy in the enforcement of criminal justice.  The privilege against self incrimination applies to witnesses as well as parties in the civil or criminal proceedings.  The privilege covers documentary evidence and oral evidence.  The privilege extends to all disclosures.  Disclosure includes answers which by themselves support a criminal conviction or furnish a link in the chain of evidence needed for a conviction.

Only individuals are entitled to assert the privilege.  The Fifth Amendment privilege is a personal privilege.  The privilege protects a person only against being incriminated by his/ her own compelled testimonial communications[i].  The privilege attaches basically to the person, not to information that can incriminate a witness.  A party is privileged from producing the evidence but not from its production.  The Constitution explicitly prohibits compelling an accused to bear witness against himself/ herself.  The Amendment necessarily does not prescribe incriminating statements elicited from another[ii].  Individuals, when acting as representatives of a collective group, cannot be said to be exercising their personal rights and duties and are not entitled to purely personal privileges.  The privilege is that of the witness himself/ herself, and not that of the party on trial[iii].

The privilege does not extend to corporations and artificial or collective entities[iv].    For example: partnerships and labor unions.  No artificial organization can utilize the personal privilege against compulsory self-incrimination.  An individual acting in his/ her official capacity on behalf of the organization cannot take advantage of his/ her personal privilege.  According to the collective entity rule, corporations and other collective entities are not protected by the privilege against self incrimination.  Consequences of collective entity rule are:

  • a corporate officer cannot refuse to testify on the ground that his/ her testimony might incriminate the corporation;
  • a corporate officer cannot lawfully be compelled, in the absence of a grant of adequate immunity from prosecution, to condemn himself by his own oral testimony; and
  • a collective entity cannot refuse to produce its records on the basis of the privilege.


The Fifth Amendment privilege can be asserted when compelled to prepare incriminating documents.  The Fifth Amendment protects the person asserting the privilege only from compelled self-incrimination.  Where the preparation of business records is voluntary, no compulsion is present.  A subpoena demanding production of documents does not compel oral testimony.  Additionally, a subpoena compels a taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought[v].

The Fifth Amendment protection does not apply to the contents of a document that a person has voluntarily prepared.  However, when a grand jury subpoenas a person’s private papers, the act of producing responsive documents has a communicative aspect of its own.  It is different from the contents of the papers.  The difference is with regard to the existence, genuineness, and subpoenaed person’s possession.  Depending on the circumstances, the act of producing personal papers can be testimonial self-incrimination protected by the Fifth Amendment[vi].

Additionally, although the content of a document is not privileged, the act of producing the document can be privileged[vii].

A taxpayer cannot avoid compliance with the subpoena merely because the item of evidence which s/he is required to produce contains incriminating writing.  Incrimination can be his/ her own or that of someone else[viii].

The fact that the document is written by the person asserting the privilege is insufficient to trigger the privilege[ix].

Additionally, the records have a public aspect.  Records are in no sense private papers.  No constitutional privilege is violated by requiring the production of records.  Records that are required by law to be kept and that are subject to production are not subject to Fifth Amendment privilege against self-incrimination.

[i] Doe v. United States, 487 U.S. 201, 207 (U.S. 1988).

[ii] Couch v. United States, 409 U.S. 322, 328 (U.S. 1973).

[iii] State v. Wentworth, 65 Me. 234, 241 (Me. 1875).

[iv] Doe v. United States, 487 U.S. 201, 207 (U.S. 1988).

[v] United States v. Doe, 465 U.S. 605, 610-611 (U.S. 1984).

[vi] Fisher v. United States, 425 U.S. 391, 410 (U.S. 1976).

[vii] United States v. Doe, 465 U.S. 605, 612 (U.S. 1984).

[viii] Fisher v. United States, 425 U.S. 391, 410 (U.S. 1976).

[ix] Wilson v. United States, 221 U.S. 361, 378 (U.S. 1911).

Inside Parties and Records Protected by Privilege