I don't have time to do it right now myself, but shepardize Boyd v. U.S., 116 U.S. 616. It is an 1886 case (so really, really old) but it applied the fifth amendment to compelling the production of documents in a shipping case (suggesting the answer to your question, at least as to this case, is yes). I think there is some negative history but I'm not sure if it's on that point or not.
Why not get a search warrant? Or is it a situation that you don't know what documents or where they're kept?
Posts: 1089 | Location: UNT Dallas | Registered: June 29, 2004
Fisher v. U.S., 425 U.S. 391, 409, 96 S.Ct. 1569 (1976) ("A subpoena served on a taxpayer requiring him to produce an accountant's workpapers in his possession without doubt involves substantial compulsion. But it 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. Therefore, the Fifth Amendment would not be violated by the fact alone that the papers on their face might incriminate the taxpayer . . ..").
Lots of cases in HN 44. Goldberg v. State, 95 S.W.3d 345 (Tex.App.-Houston [1 Dist.] 2002, pet. ref'd).
If the document is testimonial U.S. v. Hatfield, No. 06-CR-0550, 2010 WL 1423103 at *1 (E.D.N.Y. April 07, 2010)(The act of production privilege applies only (1) if the existence and location of the subpoenaed papers are unknown to the government; or (2) where production would implicitly authenticate the documents).
People v. Pitts, 880 N.Y.S.2d 875, 2009 WL 279305 at *5 (N.Y.Co.Ct. Feb. 6, 2009) (Table)("This court is not aware of any decision by which a court has applied the act of production Fifth Amendment privilege to forbid use of a subpoena to obtain records in the hands of the accused, when the records are ones required to be maintained by law.").
Posts: 527 | Location: Fort Worth, Texas, | Registered: May 23, 2001
Does anyone know what this really covers? I've tried researching it a few times to see if it has ever been defined and haven't come across anything. It comes up every now and then in my cases--if it is an email or letter, I think it isn't covered since these are intended for an audience. But if it truly seems to be a journal or diary specifically detailing the sexual abuse, murder, kidnapping, etc, do you think it would it be excluded under this?
Posts: 31 | Location: Dallas County | Registered: March 13, 2001