Pleading the Fifth in the Grand Jury Room

            The Fifth Amendment to the United States Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.” Popularized in courtroom dramas—“I plead the Fifth!”—this protection is widely understood at a surface level: it prohibits compelled self-incrimination. But depending on the case, its application may be increasingly nuanced and far from ubiquitous. While the Fifth Amendment may protect many classic forms of compelled incriminating testimony—such as verbal or written statements—it may also extend to certain actions. For example, consider the so-called act of production doctrine: the idea that simply handing over documents in response to a grand jury subpoena may itself be a form of testimony worthy of Fifth Amendment protection. Against that backdrop, this blog post explores:

• The Fifth Amendment’s role in grand jury proceedings;

• The “act of production” doctrine and when it might apply; and

• Why individuals acting on behalf of a business may not be able to invoke the act of production doctrine—even if the documents could incriminate them personally.

            For more on grand jury subpoenas generally, see my prior blog post linked here.

            When the grand jury wants your testimony, it will serve you with a subpoena. And “when called by the grand jury, witnesses are legally bound to give testimony.” United States v. Mandujano, 425 U.S. 564, 571 (1976).

             Yet the law is settled that the Fifth Amendment’s protection “extends to grand jury proceedings.” United States v. Washington, 431 U.S. 181, 185 (1977). The corollary question thus becomes: can a person in receipt of a grand jury subpoena plead the Fifth Amendment and avoid appearing before the grand jury? The answer is no. The Fifth Amendment does not prevent the grand jury from seeking testimony by subpoena. Nor does it somehow nullify a valid grand jury subpoena. Instead, the Fifth Amendment forbids the government from forcing you to supply self-incriminating testimony; but the choice to do so, or not, remains yours. That means a person in receipt of a grand jury subpoena must appear before the grand jury and, once there, choose whether—and when—to plead the Fifth. The person may also choose to not invoke the Fifth Amendment and, instead, give testimony—even if the testimony would be self-incriminating. But caution: voluntary testimonial confessions to criminal acts may result in evidence that the government can use against you.

            Accordingly, it is critical for a person in receipt of a grand jury subpoena to consult a lawyer experienced in federal grand jury proceedings. The lawyer may help the recipient decipher any applicable Fifth Amendment rights and, after consultation with the government, ascertain the government’s view of the recipient in relation to the facts under investigation. The lawyer may also potentially begin negotiations with the government concerning any potential deal for “immunity”—an agreement not to prosecute—that might be available for the recipient in exchange for their testimony, depending on the facts of the particular case. See, e.g., JUSTICE MANUAL, 9-23.00, WITNESS IMMUNITY (“This chapter contains the Department [of Justice’s] policy and procedures for seeking ‘use immunity’ . . . when the witness asserts his or her privilege against self-incrimination under the Fifth Amendment.”). Moreover, consulting with an experienced lawyer upon receipt of a grand jury subpoena and before any grand jury deadline is especially important because the witness must testify alone in the grand jury room—without their lawyer present.

            B. The Act of Production Doctrine

            Although the prototypical Fifth Amendment scenario involves spoken, in-person testimony, the protection is not so narrowly confined. The Supreme Court has long recognized that actions—such as producing documents—can be communicative.

            For example, in Fisher v. United States, 425 U.S. 391, 410 (1976), the Supreme Court confirmed the mere act of producing documents in response to a subpoena may itself convey information that is both testimonial and incriminating and thus within the confines of Fifth Amendment protection. Indeed, as later outlined by the United States Court of Appeals for the Fifth Circuit, the act of producing records might tell the government that:

            (1) the subpoena recipient knows or believes the records exists;

            (2) the recipient possesses or controls them; and

            (3) the records are true and correct or are otherwise “authentic.”

S.E.C. v. Farmer, 560 Fed. App’x 324, 326 (5th Cir. 2014 ) (citation omitted).

            While perhaps seemingly innocuous, admitting any of those three items during a grand jury investigation may have consequences. For example, any admission that a subpoena recipient knows or believes a particular record exists might somehow be related to a fact under investigation, necessitating further criminal investigation and potential scrutiny of the recipient by the grand jury, or may have evidentiary impacts at any trial before a petit jury. Consultation with an experienced lawyer is thus crucial, especially considering that application of the act of production doctrine is nuanced and may not apply to every case. See, e.g., United States v. Doe, 465 U.S. 605, 613 (1984) (noting that application of the act of production doctrine does not “lend [itself] to categorical answers” and “may instead depend on the facts and circumstances of particular cases.”).

            C. The Act of Production Doctrine: Corporate Records and the Fifth Amendment        

            The complexity increases if the grand jury seeks corporate records from a business custodian. The Fifth Amendment protects individuals, not entities. Thus, a corporate representative in receipt of a grand jury subpoena seeking business records may not enjoy any Fifth Amendment protection—even if the act of producing those documents may personally incriminate the representative. See United States v. Reynolds, No. 3:96-CR-003-H, 1996 WL 479596, at *3 (N.D. Tex. July 22, 1996) (“A custodian of corporate records may not interpose a Fifth Amendment objection to the compelled production of corporate records, even though the act of production may prove personally incriminating.”); In re Grand Jury Subpoena Dated June 27, 1991, 772 F. Supp. 326, 329 (N.D. Tex. 1991) (“Although this [Fifth Amendment] privilege protects individuals, it has no application to corporations, and an individual cannot assert his personal privilege in order to defeat a subpoena for corporate records, even if the records contain information incriminating him, and even if the documents were drafted by him in his capacity as corporate officer.”).

            Accordingly, it is important for a person in receipt of a grand jury subpoena to consult a lawyer who may, among other things, ascertain whether the grand jury seeks personal or business records and whether the witness was served with the subpoena in their personal or corporate representative capacity.

            D. Takeaway

            The Fifth Amendment’s application in the grand jury context can be fact intensive and nuanced. And your lawyer won’t be in the grand jury room with you, so consultation ahead of time—understanding any rights, risks, and options—is paramount.

            If you have any questions regarding this blog post or any civil or criminal tax matter or any white collar criminal matter, you may contact me at emendoza@meadowscollier.com or by calling 214.749.2420.