April 14, 2020 Best of ABA Sections

Can a Regulation Abrogate the Act of Production Privilege?

Caroline Rule

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In 1976, in Fisher v. United States, 425 U.S. 391 (1976), the Supreme Court first recognized the “act of production privilege” as being a necessary component of the Fifth Amendment’s privilege against self-incrimination. A grand jury subpoena or Service summons does not violate the Fifth Amendment just because documents the government seeks are incriminating; pre-existing documents are not the result of government compulsion. But a taxpayer may refuse to produce those same documents if the compelled act of producing them is testimonial and incriminating. The act of production privilege does not apply, however, if factual admissions inherent in producing documents are a “foregone conclusion” (i.e., if the government can independently prove those facts without relying on the documents’ production).

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