Jersey and the Fifth Amendment

March 13, 2014

The Fifth Amendment to the U.S. Constitution states:  “No person … shall be compelled in any criminal case to be a witness against himself.” In New Jersey, a battle has developed over a legislative committee’s demand for emails from Governor Chris Christie’s people in connection with the Bridgegate investigation. (Alas, 40+ years after Watergate, we finally have another water-related “gate.”)

Absent a grant of immunity, no one can be forced to testify about matters if the testimony may be self-incriminating. But what about emails and other records, created long before the investigation?

I have had one case in my 32+ year career that involved Fifth Amendment claims, and it revolved around a waiver of those claims. So, I’m no expert. Educated layperson fits better! (I have also only read media reports about the doings in Jersey, and have read no pleadings or transcripts of oral arguments.)

Still, I thought the answer was simple:  If I’m dumb enough to say stupid things in an email and send the email to someone else, even someone who may be a co-conspirator, bad on me, and who compelled me to become a witness against myself? Not so fast, it turns out!

The U.S. Supreme Court, in United States v. Doe, drew a clear demarcation between documents and the act of producing them. Doe, decided in 1984, sets forth as a clear principle that “[w]here the preparation of business records is voluntary, no compulsion is present.” However, Doe also discusses the fact that “[a] government subpoena compels the holder of the document to perform an act that may have testimonial aspects and an incriminating effect.” Quoting from a prior case, Justice Lewis Powell, author of the majority opinion, notes that

“[c]ompliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer [and] also would indicate the taxpayer’s belief that the papers are those described in the subpoena.”

So, the law has developed limited use immunity. A party from whom the documents are requested must deliver the documents, but the government cannot use anything about possession or delivery in connection with any criminal proceedings.

So what about the New Jersey case? (As an aside, Doe involved a New Jersey corruption investigation in 1980. Nothing to see here; just move along!) Recalling my limitations on these issues, I assume the New Jersey legislature wants to:  (a) find out what happened; and (b) knock Humpty- Dumpty Christie off the wall if he knew anything about any of this/ordered the lane closures, etc. The staffers want immunity and, ultimately someone will see what they wrote!

And the real lesson? If you’ve gotten something you want to say and you wouldn’t want someone to see it tomorrow, don’t write it down!

P.S.  If I have anything wrong on the law here, please pipe up!


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