Finding What Was Lost: Sorting Out the Custodian’s Privilege against Self-Incrimination from the Compelled Production of Records

Authors

Peter J. Henning, Wayne State University Law SchoolFollow

Abstract

I. Introduction

II. The Allure of Subpoenaing an Investigative Target

III. Privacy, Papers, and the Privilege: Overcoming the Legacy of Boyd v. United States

IV. Fisher v. United States: What Does “Authentication” Mean at the Investigative Stage ... A. The Irrelevance of Authentication before the Grand Jury ... B. Distinguishing the Investigative and Trial Phases in the Act of Production Analysis ... C. Once Lost, Can the Privilege be Reasserted?

V. Braswell v. United States: Limiting Use at Trial of the Custodian’s Act of Production

VI. Compelling a Custodian’s Testimony as “Auxiliary” to the Act of Production ... A. Curcio v. United States: Dictum Masquerading as Fifth Amendment Analysis ... B. The Legacy of Curcio: “Auxiliary” Testimony and the Business Records Exception ... 1. Compelling Evidentiary Testimony to Avoid Hearsay Problems ... 2. Calling the Defendant “to Be a Witness Against Himself’ ... 3. Assessing the Availability of the Fifth Amendment Privilege in Its Proper Context

VII. Conclusion

Recommended Citation

Peter J. Henning, Finding What Was Lost: Sorting Out the Custodian’s Privilege against Self-Incrimination from the Compelled Production of Records, 77 Neb. L. Rev. (1998)
Available at: https://digitalcommons.unl.edu/nlr/vol77/iss1/3