487 U. S. 99
June 22, 1988
Randy Braswell was served with a subpoena to turn over records of a corporation which was basically his alter ego. Braswell argued that producing the requested documents would be a testimonial act, and that it might incriminate himself. He therefore sought to avoid producing the documents under the Fifth Amendment. At a minimum, he said, he had to be afforded immunity for the production. The government responded that under the collective entity rule, he could not assert such a privilege.
The Supreme Court ruled 5-4 that the Fifth Amendment could not be invoked. Rehnquist admitted that the Court had previously found that producing documents was testimonial, but that this rule only applied when the documents of a sole proprietorship were sought. When the documents of a corporation were sought, the custodial of the documents acted as an agent of the corporation – in other words, Braswell would not be asserting a privilege for himself, but for the corporation as a whole. And under a long line of cases, the collective entity rule had been established that corporations could not defeat subpoenas by invoking Fifth Amendment rights.
A case called Curcio where the Fifth Amendment protected a custodian from orally disclosing the location of documents was distinguished, because it involved verbal testimony. Rehnquist said that requiring a grant of immunity was a bad idea because it would make prosecuting certain crimes more difficult. Finally, he added a disclaimer that the government could never inform a judge or jury of the custodian’s personal identity.
Kennedy, joined by Brennan, Marshall, and Scalia, dissented. Everyone knew that the production of documents was a form of testimony, and Court precedents had held as much. Furthermore, Curcio could not be adequately distinguished because all testimony, verbal and non-verbal, gets Fifth Amendment protection. While corporate documents could not be shielded by the Amendment, none of the previous collective entity cases had held that the act of production itself was not self-incrimination. Kennedy said the majority stretched agency law too far, and that the government seemed to have targeted Braswell by the subpoena far more than his corporation. He also noted that the majority’s final disclaimer seemed to have no legal foundation. With respect to the majority’s public policy concerns, Kennedy replied that the Constitution’s text trumped them.
Kennedy eviscerated the majority opinion. It’s shameful that Rehnquist got five votes for his bit of pro-prosecution activism. It’s no fun to see made up rights, with no basis in the Constitution get recognized in some cases, and then see the actual text and substance of the Constitution ignored in others.