Who Will Produce Corporate Documents? Case Comment of In re John Doe Grand Jury Investigation

  Introduction

Article 12 of the Massachusetts Declaration of Rights states, in part, that "[n]o subject shall . . . be compelled to accuse, or furnish evidence against himself."⁽¹⁾ The privilege against self-incrimination is not a recent phenomenon, nor is it unique to the United States.⁽²⁾ Under federal jurisprudence, it has been settled that the privilege is personal and cannot be invoked by an artificial entity's representative to prevent the production of documents, even if the act of production might incriminate the representative as an individual.⁽³⁾ In spite of this well-settled federal rule, two recent Supreme Judicial Court (SJC) decisions have confused the issue in Massachusetts.⁽⁴⁾

This Comment not only will discuss the crucial questions raised by the SJC's recent rulings regarding self-incrimination and production of entity documents, but also will address how Massachusetts law compares with its federal counterpart.⁽⁵⁾ It will also discuss different policy justifications in favor of, and opposed to, the current rule, analyze how the current law may be applied by trial courts, and predict certain difficulties the courts may encounter.⁽⁶⁾

First, it will be necessary to discuss the development of federal jurisprudence regarding Fifth Amendment privilege and the production of documents.⁽⁷⁾ This particular section will analyze numerous United States Supreme Court decisions, starting with Boyd v. United States,⁽⁸⁾ and the subsequent exceptions to the broad rule laid down in Boyd.⁽⁹⁾

The next section will discuss the evolution of Massachusetts law regarding the same or similar self-incrimination questions and how the SJC handled them as compared with the United States Supreme Court's treatment of such questions.⁽¹⁰⁾ This will lead into the detailed analysis of In re John Doe Grand Jury Investigation,⁽¹¹⁾ a subsequent critique and discussion,⁽¹²⁾ and a concluding argument encouraging the SJC to rethink the current state of the law.⁽¹³⁾

  Background

A.  Origins of the Representative Capacity Doctrine: Federal Jurispru-dence and the Evolution of the Collective Entity Doctrine.⁽¹⁴⁾

1. Early History: The Property Rights Rationale

More than a century ago, the United States Supreme Court first confronted the issue of whether the Fifth Amendment privilege protects documents of an organization.⁽¹⁵⁾ In Boyd v. United States,⁽¹⁶⁾ the government was investigating the Boyd firm's importation of glass, and the partnership's alleged failure to pay the required duty.⁽¹⁷⁾ The government subpoenaed⁽¹⁸⁾ an invoice showing previous purchases of glass.⁽¹⁹⁾ The partnership complied with the subpoena, but protested that the seizure violated the partners' constitutional rights.⁽²⁰⁾

The issue, as framed by the Boyd Court, was whether the government's actions constituted "a search and seizure, or, what is equivalent thereto, a compulsory production of a man's private papers, to be used in evidence against him . . . an `unreasonable search and seizure' within the meaning of the Fourth Amendment."⁽²¹⁾ The Court held that such a demand for, and subsequent seizure of private papers would constitute a violation of the Fourth Amendment.⁽²²⁾ But, because the government had obtained the papers by subpoena, and not by seizure, the Court turned its attention to the Fifth Amendment, and concluded that obtaining the private papers by subpoena violated the Constitution of the United States.⁽²³⁾ The Court equated compelled production of documents with testimony.⁽²⁴⁾ The Court emphasized the private property nature of the papers, reasoning that the subpoena of the documents amounted to a trespass, which violated the Fifth Amendment.⁽²⁵⁾ The subpoena, Justice Bradley concluded, was an "invasion of [a man's] indefeasible right of . . . private property. . . . [And] any forcible and compulsory extortion of a man's . . . private papers to be used as evidence . . . of crime or to forfeit his goods is [an invasion of that right]."⁽²⁶⁾ A party (i.e., the government) could seize or demand documents only if it claimed a superior property right.⁽²⁷⁾

Commentators have criticized Boyd because of its inability to distinguish between the Fourth and Fifth Amendments.⁽²⁸⁾ Boyd's property rights framework established the "mere evidence" rule,⁽²⁹⁾ which was not overturned for eight decades.⁽³⁰⁾ Nevertheless, the privilege, based on a formalistic view of private property (not privacy), had been established.⁽³¹⁾

In the early 1900s, while the Supreme Court found it necessary to create exceptions to the apparent absolute bar of compelled production laid out in Boyd, it still maintained the holding's property rights framework.⁽³²⁾ In Hale v. Henkel,⁽³³⁾ the government subpoenaed Hale, the secretary and treasurer of his company, to produce company documents and testify before a grand jury investigating anti-trust violations.⁽³⁴⁾ Hale appeared before the grand jury but refused to answer any questions regarding the company's business activities.⁽³⁵⁾ He also refused to produce the requested documents on the ground that the documents might incriminate him.⁽³⁶⁾ The trial court held Hale in contempt, and he appealed.⁽³⁷⁾

Hale argued that the corporation, through its officers and agents, could assert the privileges offered by the Fourth and Fifth Amendments.⁽³⁸⁾ The Court disagreed, stating that the Fifth Amendment privilege was "purely a personal privilege" and could not be invoked to protect a third person.⁽³⁹⁾ The Court continued by saying that the privilege "is limited to a person who shall be compelled in any criminal case to be a witness against himself, and if he cannot set up the privilege of a third person, he certainly cannot set up the privilege of a corporation."⁽⁴⁰⁾

The Court did not overrule Boyd, but instead worked within Boyd's framework.⁽⁴¹⁾ To overcome Boyd's emphasis on private property, the Court reasoned that although a corporation is a private entity, it "is a creature of the State" and "[i]t is presumed to be incorporated for the benefit of the public."⁽⁴²⁾ The Court concluded that because of the quasi-public nature of a corporation and because the corporation was subject to the laws of its creator (the state), the state was entitled to exercise its regulatory powers over the entity.⁽⁴³⁾ The Court, however, held that the subpoena duces tecum used was too sweeping, and, therefore, unreasonable according to Boyd's Fourth Amendment analysis.⁽⁴⁴⁾

Five years later, the Court further extended the "collective entity doctrine," yet still managed to retain Boyd's validity. In Wilson v. United States,⁽⁴⁵⁾ the president of a company refused to turn over documents that were admittedly in his possession.⁽⁴⁶⁾ The subpoena was not directed at Wilson, but rather at the company.⁽⁴⁷⁾ Wilson argued that, although the documents were those of the corporation (and not his private correspondence), he should not be held in contempt for refusing to comply because the subpoena was directed at the company and not at him personally.⁽⁴⁸⁾ The Court addressed Wilson's arguments by applying the Fourth and Fifth Amendment analysis of Boyd.⁽⁴⁹⁾ The Court held that Boyd's holding, that compelling production of records was tantamount to compelling a person to be a witness against himself and also the equivalent of a search and seizure, was not applicable.⁽⁵⁰⁾ Additionally, the Court believed that the subpoena was reasonable and limited in scope as required in Hale.⁽⁵¹⁾

The Court then addressed Wilson's Fifth Amendment argument. The Court reasoned that "[a] command to the corporation is in effect a command to those who are officially responsible for the conduct of its affairs."⁽⁵²⁾ The issue turned not on Wilson's possession of the allegedly incriminating records, but on the fact that the records were owned by the corporation.⁽⁵³⁾ Therefore, Wilson could not invoke his personal Fifth Amendment privilege.⁽⁵⁴⁾ Moreover, according to the majority, the physical custody of incriminating papers did not protect the custodian against production: "[t]he question still remains with respect to the nature of documents and the capacity in which they are held."⁽⁵⁵⁾ The Court reiterated this position in a companion case decided the same day as Wilson.⁽⁵⁶⁾ The Court emphasized that the documents had a public, rather than a private nature, thus preventing Wilson from invoking the privilege.⁽⁵⁷⁾

It was not until 1944 that the Court again encountered a significant⁽⁵⁸⁾ collective entity issue. United States v. White⁽⁵⁹⁾ involved the government's investigation into a union's alleged involvement in a construction fraud scheme.⁽⁶⁰⁾ The government issued a subpoena duces tecum to the union requiring it to produce certain records to the grand jury.⁽⁶¹⁾ Although White was not the authorized custodian of the union's papers, he appeared before the grand jury proclaiming that he possessed the demanded documents.⁽⁶²⁾ White had not been subpoenaed personally, nor was there any effort made to question him as a witness.⁽⁶³⁾ White, nevertheless, refused to produce the papers on the ground that they might incriminate the union and himself.⁽⁶⁴⁾

As others before him had done, White relied on both the Fourth and Fifth Amendments to support his refusal to produce the documents.⁽⁶⁵⁾ The Court simply stated that "[s]ince the privilege against self-incrimination is a purely personal one, it cannot be utilized by or on behalf of any organization."⁽⁶⁶⁾ The Court, while signaling a shift toward a privacy rationale for the privilege, nevertheless paid homage to the private property rationale of Boyd.⁽⁶⁷⁾ The Court held that "the papers and effects which the privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity."⁽⁶⁸⁾ The Court concluded that individuals, when acting as official representatives of a collective group, "assume the rights, duties and privileges of the artificial entity . . . of which they are agents or officers and they are bound by its obligations."⁽⁶⁹⁾ The Court maintained that "the official records and documents of the organization that are held by [agents or officers] in a representative rather than in a personal capacity cannot be the subject of the personal privilege of self-incrimination even though production of the papers might intend to incriminate them personally."⁽⁷⁰⁾ Citing Hale's government regulatory theory, the Court noted that a good portion of an entity's wrongdoing is usually found in the entity's documents and that "[w]ere the cloak of the privilege to be thrown around these impersonal records . . . effective enforcement of many federal and state laws would be impossible."⁽⁷¹⁾ The Court, noting that a union (incorporated or non-incorporated) embodies the interests of the common group rather than those of its individual members, rejected White's argument that representatives of a non-incorporated union should be distinguished from a corporation.⁽⁷²⁾ Not only were corporations and their custodians subject to reasonable demands for documents, but now, according to White, any artificial organization and its representatives were subject to compelled production.⁽⁷³⁾

Two other United States Supreme Court decisions in the middle of this century shed further light on the law regarding the Fifth Amendment and production of documents pursuant to a subpoena duces tecum. In Shapiro v. United States,⁽⁷⁴⁾ the witness under investigation was served with a subpoena duces tecum to produce documents.⁽⁷⁵⁾ The government suspected the witness, a sole proprietor, of violating a particular statute which required the witness to keep certain documents.⁽⁷⁶⁾ The Court did not believe that Congress had intended the private privilege of self-incrimination to apply to records that were required to be kept by the witness.⁽⁷⁷⁾ After reviewing the legislative history of the statute, the majority concluded that Congress did not intend the immunity conferred by the statute "to be so broad as to confer a bonus for the production of information otherwise obtainable."⁽⁷⁸⁾ The Court did not believe that a sole proprietor should be allowed a protection not available to a corporation.⁽⁷⁹⁾ The Court concluded that because the documents were required to be kept by law, they should be construed as public documents.⁽⁸⁰⁾ This ruling further extended the public records notion and regulatory theory first advanced in Wilson.⁽⁸¹⁾ The Court noted, without elaboration, that in circumstances in which documents were not required by law to be kept, production of them might be excused under the privilege.⁽⁸²⁾ The types of circumstances in which production could be protected by the privilege were elaborated upon in later cases.⁽⁸³⁾

Ten years later, the Court was confronted with a case, Curcio v. United States,⁽⁸⁴⁾ which, in many aspects, resembled the White case.⁽⁸⁵⁾ Curcio, the secretary-treasurer of a union under federal investigation for racketeering, refused to answer questions regarding the union's records.⁽⁸⁶⁾ There were two subpoenas addressed to Curcio in his representative capacity--a personal subpoena ad testificandum (requiring a witness to give oral testimony) and a subpoena duces tecum.⁽⁸⁷⁾ Curcio testified that the union had the books but that he did not have possession, and he refused, on the ground of self-incrimination, to reveal the documents' location.⁽⁸⁸⁾

The government, relying principally on the White,⁽⁸⁹⁾ Wilson,⁽⁹⁰⁾ and Hale⁽⁹¹⁾ decisions, argued that Curcio's representative duty required him not only to produce the documents, but also to give oral testimony regarding their whereabouts.⁽⁹²⁾ If a custodian fails to produce the demanded books, the government reasoned, he must "explain or account under oath for their non production, even though to do so may tend to incriminate him."⁽⁹³⁾ The Court, noting a circuit court opinion,⁽⁹⁴⁾ conceded that a representative may be required to give oral testimony to identify records produced pursuant to a subpoena duces tecum.⁽⁹⁵⁾ Nevertheless, the Court believed Curcio's situation was different.⁽⁹⁶⁾ The government was not simply seeking testimony regarding documents already produced, but was seeking compelled testimony regarding the whereabouts of the documents not produced.⁽⁹⁷⁾ Furthermore, the Court reiterated its position in Shapiro by saying that oral testimony could be compelled only with a grant of immunity.⁽⁹⁸⁾ The Court's holding made clear that there was no protection for a custodian compelled to produce an entity's documents, because the custodian had no legal interest in them.⁽⁹⁹⁾ According to the Court, oral testimony regarding documents, whether produced or not, however, was unquestionably protected by the privilege.⁽¹⁰⁰⁾

2. Recent History: Movement From a Privacy Rationale to a Compelled Testimony Standard

The case of Bellis v. United States⁽¹⁰¹⁾ raised the issue of whether a partnership fell under the collective entity doctrine.⁽¹⁰²⁾ More importantly, though, the holding clearly signaled the shift from a property rights rationale, to a privacy rationale for determining if the privilege could be invoked.⁽¹⁰³⁾

Bellis, a former partner in a three-member law firm, was subpoenaed to testify and to produce partnership records before a federal grand jury.⁽¹⁰⁴⁾ Bellis had been the custodian of the firm's financial records sought by the government.⁽¹⁰⁵⁾ These records had remained with the other two partners, but, shortly before the issuance of the subpoena, Bellis removed the records from his old firm and took them to his new firm.⁽¹⁰⁶⁾

Justice Marshall's majority opinion⁽¹⁰⁷⁾ first summarized the history of the collective entity doctrine, drawing particular attention to the regulatory powers theory originally advanced in Hale and Wilson and further extended in White.⁽¹⁰⁸⁾ Justice Marshall, applying the previous decisions, concluded that the partnership was not entitled to the privilege.⁽¹⁰⁹⁾ He based his decision on the partnership law of Pennsylvania, recognizing that the state's partnership law stated that documents of the partnership were available for all members and that one partner could not use partnership property for anything other than partnership purposes without consent of the other partners.⁽¹¹⁰⁾

Remarkably, both the majority and the dissent clearly believed that the policy rationale behind the privilege was a right to privacy, yet the opinions incorrectly relied on Boyd to support their belief.⁽¹¹¹⁾ The Court, using its privacy reasoning, held that "a substantial claim of privacy or confidentiality cannot often be maintained with respect to the financial records of an organized collective entity."⁽¹¹²⁾ Clearly, the majority interpreted White to mean that entity documents did not meet the threshold level of privacy required to invoke the privilege.⁽¹¹³⁾ The Court formulated a three-part test to analyze whether an organization should fall under the collective entity doctrine:

The group must be relatively well organized and structured, and not merely a loose, informal association of individuals. It must maintain a distinct set of organizational records, and recognize rights in its members of control and access to them. And the records subpoenaed must in fact be organizational records held in a representative capacity. In other words, it must be fair to say that the records demanded are the records of the organization rather than those of the individual under White.⁽¹¹⁴⁾

Under the analysis set forth in Bellis, it appeared unlikely that any organization's representative, save for a sole proprietorship, would be entitled to invoke the privilege.⁽¹¹⁵⁾

The Court discarded the privacy rationale and fashioned a new standard in Fisher v. United States.⁽¹¹⁶⁾ Although Fisher did not directly involve an organization, its holding did affect the collective entity doctrine and Fifth Amendment privilege. The case considered the issue of whether a taxpayer's attorney⁽¹¹⁷⁾ could invoke the privilege to prevent compelled production of an accountant's papers, assuming the taxpayer himself could have invoked the privilege.⁽¹¹⁸⁾ The taxpayer had turned over the records to the attorney, allegedly for the purpose of obtaining legal advice.⁽¹¹⁹⁾ The Fisher Court, citing another recent opinion involving similar facts,⁽¹²⁰⁾ held that the documents were not privileged, whether in possession of the attorney or the taxpayer, because no reasonable expectation of privacy regarding the papers existed.⁽¹²¹⁾

The Fisher Court's reasoning, at first glance, appeared to be based on the privacy rationale, stating that "one of the several purposes served by the constitutional privilege against compelled testimonial self-incrimination is that of protecting personal privacy."⁽¹²²⁾ Nevertheless, the Court did not believe that requiring a person to turn over voluntarily prepared papers, private or otherwise, involved any compelled testimonial self-incrimination.⁽¹²³⁾ According to the Court, since the taxpayer, who had voluntarily had an accountant prepare the papers, could not invoke the privilege, neither could the attorney.⁽¹²⁴⁾ The Court also rejected the taxpayer's argument that the attorney could not be compelled to produce the documents because it would violate the attorney-client privilege.⁽¹²⁵⁾ The Court held that "pre-existing documents which could have been obtained by court process from the client when he was in possession may also be obtained from the attorney by similar process following transfer by the client in order to obtain more informed legal advice."⁽¹²⁶⁾

The Fisher decision signaled a new standard, because its holding established new criteria in document production cases, one which undermined the privacy rationale.⁽¹²⁷⁾ The Court noted that the "Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating."⁽¹²⁸⁾ The Court conceded that requiring a taxpayer to produce his accountant's papers does involve an element of compulsion, but it does not require oral testimony regarding the accuracy of the papers, nor does it require the taxpayer to reveal the contents of his mind.⁽¹²⁹⁾ Since the privilege only prohibits "compelled testimonial communications" the taxpayer's rights were not violated.⁽¹³⁰⁾ The Court conceded that producing evidence pursuant to a subpoena has communicative aspects because it discloses that a witness had the documents and that he believed that they were the ones demanded by the subpoena.⁽¹³¹⁾ Producing the documents, however, would not be sufficiently testimonial or incriminating to invoke the privilege because their existence, location, and control were a "forgone conclusion."⁽¹³²⁾ The Fisher holding clearly established a two-part test regarding the Fifth Amendment privilege.⁽¹³³⁾ For a witness to successfully sustain a Fifth Amendment claim she must show that the action being compelled is: (1) sufficiently testimonial and, (2) incriminating.⁽¹³⁴⁾ According to the Fisher Court, it appeared unlikely that any compelled discovery or production of entity documents would be self-incriminating (except perhaps purely personal papers).⁽¹³⁵⁾

The Court reaffirmed the Fisher compelled testimony standard eight years later in United States v. Doe.⁽¹³⁶⁾ The claimant in Doe was the owner of several sole proprietorships being investigated for alleged misconduct in the awarding of local government contracts.⁽¹³⁷⁾ The government, through a series of subpoenas, sought production of numerous business records.⁽¹³⁸⁾ The claimant's motion to quash was successful and was upheld by the Third Circuit.⁽¹³⁹⁾ According to Justice Powell's majority opinion, the reasoning in Fisher applied, regardless of whether or not the claimant was a sole proprietor.⁽¹⁴⁰⁾ Although the opinion held that the contents of the voluntarily prepared documents were not privileged, Powell noted that Fisher left the door open regarding whether the act of production may be privileged.⁽¹⁴¹⁾

The Doe Court upheld both lower courts' determinations that the "act of production" was incriminating.⁽¹⁴²⁾ The Court noted that, unlike Fisher, there had been an explicit determination by the trial court that the act of production would involve testimonial self-incrimination.⁽¹⁴³⁾ The act of producing the documents in this particular case was, according to the majority, privileged and could not be compelled without a grant of immunity.⁽¹⁴⁴⁾ The Doe decision officially recognized that the act of production was privileged in certain circumstances.⁽¹⁴⁵⁾ Moreover, Doe stood for the proposition that those persons wishing to invoke the privilege must convince the trial judge that the action was sufficiently testimonial and self-incriminating.⁽¹⁴⁶⁾ According to some commentators, such a standard would be difficult for judges and prosecutors to apply.⁽¹⁴⁷⁾

The Court was next confronted with an "act of production" privilege claim in Braswell v. United States.⁽¹⁴⁸⁾ Braswell was the sole owner of two Mississippi corporations.⁽¹⁴⁹⁾ In 1986, a federal grand jury issued a subpoena directed at Braswell as representative of the two corporations.⁽¹⁵⁰⁾ The subpoena demanded the production of corporation documents, but did not require Braswell to testify.⁽¹⁵¹⁾ Braswell, in his motion to quash, argued that the collective entity doctrine did not apply to a small corporation that is nothing more than the alter ego of the individual owner.⁽¹⁵²⁾ The Fifth Circuit affirmed the District Court's denial of Braswell's motion, holding that the "act of production" privilege was unavailable for a custodian of corporate documents.⁽¹⁵³⁾

The Supreme Court, in a 5-4 decision, upheld the decisions of the lower courts⁽¹⁵⁴⁾ and rejected Braswell's claim that the act of production had "independent testimonial significance, which would incriminate him individually."⁽¹⁵⁵⁾ The Court acknowledged that the Doe and Fisher decisions had recognized the "act of production" privilege,⁽¹⁵⁶⁾ but because Braswell operated as a corporation rather than a sole proprietor, he was not entitled to the privilege.⁽¹⁵⁷⁾

The Braswell Court, when reviewing past collective entity cases, noted that Bellis held that the size of the organization did not matter: "`[i]t is well settled that no privilege can be claimed by the custodian of corporate records, regardless of how small the corporation may be.'"⁽¹⁵⁸⁾ The Braswell Court further noted that the collective entity doctrine had established that an organization's documents were not private and, therefore, not protected by the privilege.⁽¹⁵⁹⁾ Nevertheless, the Court stated that previous collective entity cases were concerned with the content of documents, not the act of production.⁽¹⁶⁰⁾ Furthermore, Fisher and Doe, although not technically collective entity cases, had moved away from the privacy rationale and "replac[ed] it with a compelled-testimony standard under which the contents of business documents are never privileged but the act of producing the documents may be."⁽¹⁶¹⁾

The Braswell opinion reconciled the act of production standard with the collective entity doctrine, further extending the reach of the representative capacity doctrine.⁽¹⁶²⁾ Chief Justice Rehnquist, relying on past collective entity decisions, made clear "that the custodian of corporate or entity records holds those documents in a representative [capacity] rather than a personal capacity."⁽¹⁶³⁾ When serving in a representative capacity, Chief Justice Rehnquist noted, the custodian acts for the company.⁽¹⁶⁴⁾ Moreover, since the company is not entitled to the privilege (act of production or otherwise), "the custodian's act of production is not deemed a personal act, but rather an act of the corporation."⁽¹⁶⁵⁾ The majority acknowledged Fisher's recognition of the act of production privilege,⁽¹⁶⁶⁾ but did not believe that the act of production privilege would have affected prior collective entity cases had it been recognized earlier.⁽¹⁶⁷⁾ The fact that the act of production might incriminate the custodian herself was not relevant; it was her status as representative that counted.⁽¹⁶⁸⁾

The Court further justified its holding by recognizing that a contrary decision would have a serious "detrimental impact on the Government's efforts to prosecute `white-collar crime.'"⁽¹⁶⁹⁾ Braswell argued that the concern about the government's ability to investigate white-collar crime could be solved in one of two ways.⁽¹⁷⁰⁾ The government could grant the custodian statutory immunity for the act of production,⁽¹⁷¹⁾ or the government could address the subpoena to the corporation and allow it to choose an agent who would be able to produce the documents without incriminating himself.⁽¹⁷²⁾

The majority did not believe that either proposal was satisfactory.⁽¹⁷³⁾ The opinion noted that Braswell had argued that if another custodian was appointed he would not be required to assist the new custodian in his search because such aid "to the surrogate would itself be testimonial and incriminating."⁽¹⁷⁴⁾ Obviously, this "solution" is a catch-22 situation when dealing with closely-held corporations because it is unlikely that anyone but the custodian will have the necessary knowledge regarding the documents.⁽¹⁷⁵⁾ Such a "solution" would prevent the documents from being produced, thus allowing closely-held corporations to avoid their duty to produce documents pursuant to a valid government demand.⁽¹⁷⁶⁾

A grant of immunity would likely relieve the testimonial aspects of production, but this too would "[entail] a significant drawback."⁽¹⁷⁷⁾ The Court pointed out that, although all the evidence obtained through immunity may be used against the corporation, none of it may be used against the custodian who is granted immunity.⁽¹⁷⁸⁾ The Court, in Kastigar v. United States,⁽¹⁷⁹⁾ stated that if evidence is used to prosecute a witness who was granted immunity, the government assumes a heavy burden of proving that the evidence was derived from an independent source.⁽¹⁸⁰⁾ According to the Braswell majority, even in cases where immunized testimony is not used "for any purpose--direct or derivative--against the witness, the Government's inability to meet the `heavy burden' . . . may result in the preclusion of crucial evidence . . . obtained legitimately."⁽¹⁸¹⁾

The Braswell majority acknowledged that "certain consequences flow from" a custodian's act of production.⁽¹⁸²⁾ Accordingly, the Court held that the government "may make no evidentiary use of the `individual act' against the individual."⁽¹⁸³⁾ Yet, because the Court interpreted the custodian's act of production as being that of the corporation, the Court allowed the government to use the corporate act against the individual.⁽¹⁸⁴⁾ Additionally, the Court allowed a jury to draw inferences about the authenticity of the records as well as the custodian's knowledge, even though it would not know that the custodian was the representative that produced the records.⁽¹⁸⁵⁾ Braswell, though recognizing the act of production privilege, made it clear that an artificial entity is not excused from its duty to produce documents simply because the entity's custodian would be incriminated by the act of production.⁽¹⁸⁶⁾

B.  Self-Incrimination and Production of Documents Under Massachusetts Law

Massachusetts case law involving the production of entity records is substantially less developed than the corresponding federal law. In fact, Massachusetts did not encounter a collective entity case until Commonwealth v. Doe,⁽¹⁸⁷⁾ in 1989. The SJC had, however, previously faced self-incrimination questions which impacted its decision in Commonwealth v. Doe.⁽¹⁸⁸⁾

In Commonwealth v. Hughes,⁽¹⁸⁹⁾ the SJC was faced with the issue of whether a suspect could claim the privilege against self-incrimination in response to the government's motion to produce a firearm allegedly used in a crime.⁽¹⁹⁰⁾ Hughes was the suspect in a shooting and apparently owned a pistol that was believed to be the weapon used in the crime.⁽¹⁹¹⁾ The Commonwealth's motion demanding Hughes to produce the weapon was granted by the trial court.⁽¹⁹²⁾ Hughes refused to comply and was held in contempt.⁽¹⁹³⁾ Hughes appealed, arguing that the motion to produce (similar to a subpoena duces tecum) violated the Fourth and Fifth Amendments.⁽¹⁹⁴⁾

The SJC observed that the Commonwealth's motion required Hughes's assistance in obtaining evidence and was therefore testimonial.⁽¹⁹⁵⁾ Thus, the SJC did not mistakenly analyze the issue as a self-incrimination and unreasonable search and seizure problem as the United States Supreme Court had done in Boyd; the issue was plainly a Fifth Amendment one.⁽¹⁹⁶⁾

Although production of the pistol was obviously not oral testimony, the SJC nevertheless noted that in some circumstances, there was little distinction between oral and implicit statements.⁽¹⁹⁷⁾ The SJC noted the Fisher decision's holding that the privilege applies only when the evidence is compelled, testimonial, and incriminating.⁽¹⁹⁸⁾ Consequently, the SJC narrowed the issue to whether producing the pistol would be sufficiently testimonial and incriminating.⁽¹⁹⁹⁾

The SJC relied on Fisher and Schmerber v. California⁽²⁰⁰⁾ in its reasoning.⁽²⁰¹⁾ The court noted that, in both cases, the existence, location, and authenticity of the items to be produced were a "forgone conclusion."⁽²⁰²⁾ The situation in Hughes, on the other hand, was quite the contrary. The SJC believed that if Hughes produced the pistol "he would be making implicitly a statement about its existence, location, and control" which could be used against him at trial.⁽²⁰³⁾ Although the weapon, in and of itself, might not have been sufficient to convict Hughes, it surely could have been used, through ballistics tests, to strengthen the Commonwealth's case.⁽²⁰⁴⁾ Such reliance by the SJC on the Fisher decision signaled that the SJC was willing to accept the act of production privilege.⁽²⁰⁵⁾

Two years later, the SJC was confronted with an issue similar to the one in Schmerber.⁽²⁰⁶⁾ In Commonwealth v. Brennan,⁽²⁰⁷⁾ the court faced the issue of whether Article 12 of the Massachusetts Declaration of Rights required the suppression of the results of breathalyzer and field sobriety tests obtained under the threat of mandatory loss of license for failure to submit to such tests.⁽²⁰⁸⁾ According to the SJC, the privilege against self-incrimination protected against compelled testimony or communications and did "not bar compulsion `which makes a suspect or accused the source of "real or physical evidence."'"⁽²⁰⁹⁾ The court concluded that "[a] breathalyzer test is no more communicative or testimonial than a blood test, and it is certainly a less intrusive method of obtaining evidence."⁽²¹⁰⁾ The court held the same for field sobriety tests saying that they "do not involve testimonial or communicative evidence."⁽²¹¹⁾

The SJC disagreed with the defendants' arguments that the broader language of Article 12 allowed more protection than the Fifth Amendment.⁽²¹²⁾ After briefly reviewing the history of the privilege, the court stated that the framers of Article 12 "did not contemplate that [it would] apply to real or physical evidence, the production of which would have no inherently communicative value."⁽²¹³⁾ In concluding, the SJC interpreted Article 12 to preclude "only the compelled production of `testimonial' evidence."⁽²¹⁴⁾

Two cases decided by the SJC shortly after the Brennan decision provided further interpretation of Article 12. In Attorney General v. Colleton,⁽²¹⁵⁾ the SJC interpreted Article 12 more broadly than the United States Supreme Court had interpreted the Fifth Amendment in cases such as White,⁽²¹⁶⁾ Bellis,⁽²¹⁷⁾ and Fisher.⁽²¹⁸⁾ The SJC declined to follow the Supreme Court's holding in Kastigar v. United States⁽²¹⁹⁾ regarding the level of immunity that must be granted before testimony could be compelled.⁽²²⁰⁾ Kastigar held that a grant of immunity would not violate the Fifth Amendment even though the grant of immunity prohibited using, as evidence, any compelled testimony and any evidence directly or indirectly derived from the compelled testimony.⁽²²¹⁾ The SJC acknowledged that Kastigar set the minimum Constitutional requirements at "use and derivative-use immunity," but interpreted Article 12 as requiring absolute, or transactional immunity.⁽²²²⁾

Although the SJC did not follow the United States Supreme Court on the issue of immunity, it agreed with the Supreme Court's Shapiro decision regarding the required records exception.⁽²²³⁾ In Stornanti v. Commonwealth,⁽²²⁴⁾ the SJC held that records or documents required by statute to be kept by a business were not privileged under Article 12.⁽²²⁵⁾ The SJC chose to follow the federal rule for the same reasons advanced in Shapiro, concluding that, under the circumstances, "art[icle] 12 does not guarantee more extensive rights than does the Fifth Amendment."⁽²²⁶⁾ As the previously discussed SJC opinions indicate, the court, when faced with self-incrimination cases, showed a willingness to follow United States Supreme Court precedent. It departed from this trend, however, when it was confronted with a collective entity case.

The year after the Supreme Court's decision in Braswell, the SJC was confronted with a strikingly similar case, Commonwealth v. Doe.⁽²²⁷⁾ The witness in Commonwealth v. Doe was the sole owner, director, and officer of a computer equipment corporation under investigation by a Worcester County grand jury.⁽²²⁸⁾ The grand jury issued a subpoena duces tecum directed to the corporation's "Keeper of Records" requesting the keeper to appear before the grand jury and produce certain records as well as a software system.⁽²²⁹⁾ The witness filed a motion to quash the subpoena.⁽²³⁰⁾ With the motion, he filed an affidavit which stated that he was the keeper of records and that he believed the materials requested contained incriminating information.⁽²³¹⁾ The Superior Court judge denied the witness's motion.⁽²³²⁾ Nevertheless, when the witness appeared before the grand jury, he invoked his Article 12 privilege against self-incrimination.⁽²³³⁾ The judge ruled that the witness was in contempt and the witness appealed.⁽²³⁴⁾

The witness conceded that, due to the Braswell decision, he had no protection under the Fifth Amendment.⁽²³⁵⁾ Instead, he argued that Article 12 afforded him greater protection against self-incrimination than the Fifth Amendment.⁽²³⁶⁾ The SJC agreed with the witness, acknowledging that it had previously been willing to extend Article 12 "beyond the safeguards afforded by the United States Constitution."⁽²³⁷⁾

The SJC stated that it had previously "held that the act of production, quite apart from the content of that which is produced, may itself be communicative."⁽²³⁸⁾ The SJC believed that if the witness produced the materials "he would be testifying, in effect, as to the existence and location of those materials, as well as to the control that he had over them."⁽²³⁹⁾ According to the SJC, such actions would violate Article 12, because they would reveal the "knowledge, understanding, and thoughts of the witness."⁽²⁴⁰⁾

The SJC plainly rejected the United States Supreme Court's reasoning in Braswell, which held that a custodian acts only in a representative capacity.⁽²⁴¹⁾ The SJC simply stated that it "decline[d] to engage in such a fiction."⁽²⁴²⁾ According to the SJC, the status of the witness did "not alter the fact that in so far as he is a natural person he is entitled to the protection of art[icle] 12."⁽²⁴³⁾ Under Massachusetts law, a person's action is deemed to be primarily his or her own act, not the act of the entity.⁽²⁴⁴⁾ The court dismissed the Commonwealth's concern that closely held corporations could "shield" a witness and a corporation, thereby defeating the government's interest in investigating corporate crime.⁽²⁴⁵⁾ The court reiterated its previous holding in Blaisdell v. Commonwealth⁽²⁴⁶⁾ that when the privilege is available, Article 12 demands that there is no balancing of state-defendant interests to ease the burden of the prosecution.⁽²⁴⁷⁾

The court, however, appeared to balance these interests when it reached its conclusion that "[t]he fact that a particular record custodian has a valid privilege does not excuse the corporation from its obligation" if the act will not implicate the custodian himself.⁽²⁴⁸⁾ The opinion also mentioned, in a footnote, that it made no decision regarding the question of whether a corporation is entitled to Article 12 rights.⁽²⁴⁹⁾ This was the status of the law when In re John Doe Grand Jury Investigation⁽²⁵⁰⁾ came before the SJC in 1994.

  Analysis of In re John Doe Grand Jury Investigation

A.  The Facts and Procedure of the Case

The facts of In re John Doe Grand Jury Investigation were analogous to those in Commonwealth v. Doe.⁽²⁵¹⁾ Lawrence and Eric LeBoeuf, a father-son duo,⁽²⁵²⁾ were the sole shareholders, officers, and directors of LeBoeuf Rubbish Removal, Inc., a closely-held Massachusetts corporation located in Worcester County.⁽²⁵³⁾

In March of 1993, a Worcester County grand jury investigating the LeBoeufs⁽²⁵⁴⁾ issued a subpoena duces tecum directed to the corporation.⁽²⁵⁵⁾ The LeBoeufs appeared before the grand jury whereupon they refused to testify or produce the documents, exercising their rights against self-incrimination under the Fifth Amendment and Article 12.⁽²⁵⁶⁾ The LeBoeufs subsequently filed a motion to quash the subpoena, to which the Commonwealth followed with its own motion to compel the corporation to appoint an alternate keeper of records.⁽²⁵⁷⁾ Superior Court Judge Toomey denied the Commonwealth's motion and granted the LeBoeufs' motion to quash.⁽²⁵⁸⁾ The Commonwealth filed an application for an interlocutory appeal, which was allowed by Justice Nolan sitting as a single Justice.⁽²⁵⁹⁾

B.  The Opinions of the Supreme Judicial Court

1.  The Majority Opinion

The majority first addressed the issue of whether a closely-held corporation was entitled to the Article 12 privilege.⁽²⁶⁰⁾ The court reviewed such decisions as Hale, White, and Bellis to illustrate that the Fifth Amendment privilege was clearly a personal privilege.⁽²⁶¹⁾ The court continued by reviewing prior SJC cases which indicated that Article 12 was a personal privilege and could not be invoked by a corporation.⁽²⁶²⁾ Thus, the SJC declined to depart from the federal rule and concluded that a "corporation may not rely on art[icle] 12 protection in refusing to comply with [a] subpoena."⁽²⁶³⁾

The court took the next step by stating that "the personal privilege against self-incrimination of individual representatives of a corporation [does not] extend to the corporation's papers and records."⁽²⁶⁴⁾ Furthermore, the court noted that the Doe decision "held that only the `act of production' of corporate records was subject to a representative's art[icle] 12 rights" and did not hold "that the representative had a personal right against self-incrimination in the documents themselves."⁽²⁶⁵⁾ According to the court "the voluntary act of incorporation cannot insulate the corporate records themselves from disclosure to the grand jury."⁽²⁶⁶⁾

The majority agreed with the Commonwealth's position that a closely held corporation is not relieved "of its obligation to comply with the subpoena."⁽²⁶⁷⁾ The court, perhaps agreeing with concerns raised in the Commonwealth's brief,⁽²⁶⁸⁾ stated that "corporate principals cannot shield the corporation from a grand jury investigation by seeking to extend their individual rights against self-incrimination to the corporation."⁽²⁶⁹⁾ The court then gave the Commonwealth exactly what it wanted, stating that "[i]f the custodian of the corporate records cannot produce the records without implicating his personal art[icle] 12 rights, an alternate keeper of the records can be appointed."⁽²⁷⁰⁾ The majority, relying on a 1987 Eleventh Circuit decision, stated that "[s]uch an appointment has no testimonial attributes and, as such, does not implicate art[icle] 12 protection."⁽²⁷¹⁾ Furthermore, according to the court, the act of appointing an alternate record keeper would not violate the spirit of the holding in Commonwealth v. Doe.⁽²⁷²⁾ The majority, relying on a Second Circuit decision, reiterated its position, stating that when a custodian is in danger of implicating his privilege by the act of production,

"the corporation must appoint some other employee to produce the records, and if no existing employee could produce records without incriminating himself by such an act, then the corporation may be required to produce the records by supplying an entirely new agent who has no previous connection with the corporation that might place him in a position where his testimonial act of production would be self-incriminating. There simply is no situation in which the [F]ifth [A]mendment would prevent a corporation from producing corporate records, for the corporation itself has no [F]ifth [A]mendment privilege."⁽²⁷³⁾

The SJC simply transferred the Second Circuit's Fifth Amendment interpretation to Article 12.⁽²⁷⁴⁾ The court, however, stated that "[i]t should be understood that an order to appoint an alternate keeper of the records is not a mandate to the witnesses to say or to do anything."⁽²⁷⁵⁾ It is important to note that the majority failed to offer any guidance regarding who should be appointed as the alternate record custodian.

2.  Justice Wilkins's Concurring Opinion

Justice Wilkins offered a short, three-paragraph concurring opinion.⁽²⁷⁶⁾ Although he agreed with the majority that a court may order an alternate record keeper to deliver subpoenaed documents, he attempted to address "some of the substantial issues underlying such an order," which he believed were not adequately addressed by the majority.⁽²⁷⁷⁾

According to Justice Wilkins, a showing of probable cause may be a necessary prerequisite to a seizure of corporate records, and a court "may not be justified in simply directing a warrantless search for them."⁽²⁷⁸⁾ The alternate keeper, if court appointed, would, in a sense, be an agent of the state.⁽²⁷⁹⁾ Therefore, the keeper "may need a search warrant issued on probable cause to believe that, more likely than not, the records contain evidence concerning the commission of a crime."⁽²⁸⁰⁾ Furthermore, the alternate custodian may have no knowledge of the whereabouts of the documents, how to access them, or which ones are relevant.⁽²⁸¹⁾ The majority's holding, according to Wilkins, may very well be moot.⁽²⁸²⁾ Wilkins stated that "an order compelling the appointment of an alternate keeper of the records may be illusory because it will serve no worthwhile purpose of the Commonwealth."⁽²⁸³⁾

3.  Chief Justice Liacos's Dissenting Opinion

Chief Justice Liacos offered a dissenting opinion explicitly agreeing with Superior Court Judge Toomey's order to quash the subpoena.⁽²⁸⁴⁾ The Chief Justice briefly reviewed the 1989 Doe holding in which the SJC had declared the Braswell decision to be a "fiction."⁽²⁸⁵⁾ He then condemned the majority for "embrac[ing] a new fiction" (a court appointed alternate record custodian).⁽²⁸⁶⁾

Chief Justice Liacos defined "fiction" as: "`An imaginative creation or a pretence that does not represent actuality but has been invented.'"<sup>(287)</sup> He further defined a legal fiction as: "`Something accepted as fact without any real justification, merely for the sake of convenience.'"⁽²⁸⁸⁾ The Chief Justice believed that the dictionary definitions accurately described the majority opinion.⁽²⁸⁹⁾ According to Chief Justice Liacos, the effect of the holding was that the LeBoeufs as individuals, rather than the corporation, could be indicted and perhaps convicted because of the grand jury's access to the documents.⁽²⁹⁰⁾ This result, in the Chief Justice's view, ignored "not only the protections of art[icle] 12 but also the requirement of probable cause specified by art[icle] 14 of the Declaration of Rights of the Massachusetts Constitution."⁽²⁹¹⁾

The Chief Justice, agreeing with Judge Toomey, believed that, although the LeBoeufs would not have to testify before a grand jury, they would "`nonetheless be providing incriminating information in connection with the grand jury investigation.'"<sup>(292)</sup> Furthermore, the fact that transferring the records via a third party might be less incriminating did "`not alter the testimonial nature of the act and cannot justify a circumvention of . . . art[icle] 12.'"⁽²⁹³⁾ In Judge Toomey's opinion, the Superior Court could neither "`order the witnesses to transfer the documents to a third party, [nor] order a third party to take possession of the corporate papers.'"<sup>(294)</sup> Accordingly, "`[s]uch an order would likely amount to a warrantless seizure in violation of the Fourth Amendment . . . and [art.] 14 of the Declaration of Rights of the Massachusetts Constitution.'"⁽²⁹⁵⁾

The concurring and dissenting opinions, no doubt, raised some crucial questions regarding the privilege against self-incrimination and search and seizure.⁽²⁹⁶⁾ These questions were not addressed due to the LeBoeufs' plea agreement. It is unclear how trial courts will apply the holding or address the issues raised by Chief Justice Liacos and Justice Wilkins. Some answers to these questions are addressed in the following analysis.

  Analysis

A.  Possible Issues Regarding the Application of the SJC's Holding

The obvious question facing trial court judges, prosecutors, and defense attorneys is: who will be or should be appointed as the alternate custodian of an entity's records?⁽²⁹⁷⁾ Prior to the Braswell decision a series of federal circuit court cases had taken the position that the SJC adopted in In re John Doe Grand Jury Investigation.⁽²⁹⁸⁾ For the most part, these cases did not directly address the concerns raised by Justice Wilkins's concurring opinion.⁽²⁹⁹⁾

In United States v. Lang⁽³⁰⁰⁾ the Fourth Circuit held that occasions where a custodian's act of production amount to testimonial incrimination are rare, but even if the individual custodian has a valid Fifth Amendment claim, the corporation must comply with the subpoena through some other person.⁽³⁰¹⁾ The opinion, however, offered no guidance as to who should be appointed as an alternate custodian or what the responsibilities of the parties should be.⁽³⁰²⁾

The D.C. Circuit placed the burden of finding a suitable alternate custodian on the prosecution.⁽³⁰³⁾ The D.C. Circuit agreed that a collective entity had no privilege defense and must find a means to comply with the subpoena, nevertheless, the court stated that "a custodian does enjoy the Fifth Amendment's protection, and need only invoke it to absolve himself of any obligation to comply."⁽³⁰⁴⁾ The court made it clear that it was up to the prosecutor to find an alternative agent because the custodian's appointment of an alternate representative might "bolster the evidence against him."⁽³⁰⁵⁾

The Eleventh Circuit offered the most detailed explanation regarding a decision allowing appointment of an alternative custodian. In In re Grand Jury No. 86-3 (Will Roberts Corp.),⁽³⁰⁶⁾ the court confronted a situation analogous to Braswell, and both SJC Doe cases. Will Roberts was the president and sole shareholder of a defunct corporation under investigation by a federal grand jury.⁽³⁰⁷⁾ During the course of the investigation, the grand jury issued a subpoena for the corporation's records.⁽³⁰⁸⁾ Roberts refused to produce the records, claiming that the act of production would violate his Fifth Amendment rights, whereupon the District Court held him in contempt.⁽³⁰⁹⁾ Roberts appealed to the Eleventh Circuit.⁽³¹⁰⁾

The court conceded that, in rare circumstances, an individual custodian may assert the privilege, but that "no situation exists in which the corporation is prevented from producing corporate records."⁽³¹¹⁾ The appointment of an alternate agent would be an appropriate method of production, and furthermore, "failure to appoint such an agent [would be] a proper ground to hold the corporation in contempt."⁽³¹²⁾ The court rejected Roberts's argument that even the act of turning over the records to a designated agent would be testimonial and thus an impermissible violation of his privilege.⁽³¹³⁾ The court concluded that the implicit or tacit act of "acknowledging the existence and possession of corporate records by turning them over to a third party agent . . . is not sufficiently testimonial to trigger the privilege given the non-private nature of corporate records."⁽³¹⁴⁾

At first glance, the opinion's language appeared favorable for the prosecution, yet on closer examination, the court said that "the government must accept compliance [with the subpoena] by anyone authorized by the company."⁽³¹⁵⁾ The court, nevertheless, made clear that a corporation could not escape production of documents, regardless of the individual's personal privilege.⁽³¹⁶⁾

Some commentators have offered suggestions as to the appointment of an alternate custodian. Samuel Alito, a former Justice Department official, suggests that if no officer or subordinate is able to produce the records without implicating the privilege, then an outside agent, such as the entity's accountant or attorney, should be appointed.⁽³¹⁷⁾ Mr. Alito, however, makes no mention of a court-ordered appointed agent.⁽³¹⁸⁾ Presumably, an entity appointed agent will know where the documents are located and which ones should be produced. If there is no court-ordered appointed agent, the concerns regarding warrantless searches and testimonial incriminations raised by Justice Wilkins's concurring opinion are avoided.⁽³¹⁹⁾ However, according to the Supreme Court's holding in Curcio, compelling a custodian to orally testify or communicate the location and existence of documents would clearly be a violation of the Fifth Amendment.⁽³²⁰⁾ Compelling a witness to cooperate with a court-ordered alternate custodian appears to violate the holding in Curcio, making the compelled "appointment of an alternate keeper . . . illusory."⁽³²¹⁾

Other commentators also advocate an appointment of an alternate custodian from within the organization or even from without the organization.⁽³²²⁾ These commentators maintain that situations where there is no viable alternate custodian are rare,⁽³²³⁾ nevertheless, such cases do arise, as Braswell, Commonwealth v. Doe, and In re John Doe Grand Jury Investigation illustrate. Contrary to Mr. Alito's position, these commentators believe that there are situations where a corporation or artificial entity would be able to escape the compelled production of documents.⁽³²⁴⁾

Another possible solution advocated by some commentators is to grant immunity for the act of production.⁽³²⁵⁾ The dissent in Braswell advocated this solution,⁽³²⁶⁾ but the majority rejected this solution stating that the burden of proving an independent source of evidence (especially in closely-held corporations) would have "a deleterious effect on law enforcement efforts."⁽³²⁷⁾ The SJC's holding in Attorney General v. Colleton⁽³²⁸⁾ requiring full transactional, or absolute, immunity renders the immunity solution pointless if the Commonwealth is interested in prosecuting the officer of the entity (not simply the entity itself).⁽³²⁹⁾

If the documents sought by the Commonwealth are produced by an alternate custodian, the Commonwealth may still have authentication and admissibility problems.⁽³³⁰⁾ Despite possible problems of admissibility, production of the documents is crucial to the Commonwealth's investigation.⁽³³¹⁾ The records may lead to other evidence that is admissible, or, if there is an absence of records, (possibly because of intentional destruction) this possibly could be used against the individual defendant or corporation.⁽³³²⁾

The SJC's decision provided no guidance as to who should be appointed as an alternate custodian, and it is unlikely that the court will reconsider its position and recognize the representative capacity doctrine established in Braswell.⁽³³³⁾ The Braswell approach, as the following discussion will illustrate, is much more functional and realistic.

B.  Justification for Recognizing the Representative Capacity Doctrine

In Fisher v. United States,⁽³³⁴⁾ and later in United States v. Doe,⁽³³⁵⁾ the United States Supreme Court formulated a new standard regarding the production of documents pursuant to a subpoena.⁽³³⁶⁾ No longer would privacy be the rationale underlying the privilege against self-incrimination and the production of documents.⁽³³⁷⁾ The privilege would apply only if there was a compelled, actual or implied testimonial communication.⁽³³⁸⁾ Because an entity's documents are voluntarily prepared (never compelled) the contents of the documents, according to the Fisher standard, are never privileged.⁽³³⁹⁾ The Court, however, acknowledged that in some instances the act of producing the documents may be testimonial (tacitly or implicitly acknowledging the existence, control, and location of the documents).⁽³⁴⁰⁾ In Commonwealth v. Doe, the SJC rejected the representative capacity doctrine of Braswell, but made it clear that the documents themselves were not privileged.⁽³⁴¹⁾

The SJC's decision to reject the representative capacity doctrine was based on the court's refusal to distinguish between a custodian acting as an individual as opposed to acting for the corporation.⁽³⁴²⁾ According to the SJC, attempting to classify an individual custodian's act as being that of the corporation would be to engage in a fiction.⁽³⁴³⁾ The SJC, however, failed to acknowledge that corporations are legal fictions and can only act through principals and agents.⁽³⁴⁴⁾ If the SJC concedes that the contents of an entity's documents are not privileged, as it did in Commonwealth v. Doe,⁽³⁴⁵⁾ it follows that the Commonwealth has a right to examine the documents through the means of a valid subpoena. The SJC's holding in In re John Doe Grand Jury Investigation appears to grant the Commonwealth access to an entity's records,⁽³⁴⁶⁾ but, unlike the Braswell decision, there appears to be no guarantee that the Commonwealth will receive the subpoenaed records via an appointed agent.⁽³⁴⁷⁾

A more proper way to approach the issue is through the use of a balancing test.⁽³⁴⁸⁾ If the contents of the records are not privileged, and the entity has no right to withhold the documents from government inspection, then the individual custodian's privilege should be outweighed by the government's right (and need) for inspection.⁽³⁴⁹⁾ Most white-collar, or organizational crime, is undetectable without access to the entity's records,⁽³⁵⁰⁾ thus an artificial entity's unprivileged documents "should be obtainable without interference from an individual's claim of the privilege."⁽³⁵¹⁾ According to Wigmore, the balancing approach was acceptable: "[t]he reason why the privilege is not available to the custodian is that in this class of cases the arguments supporting efficiency of law enforcement are persuasive, and sentiments behind the privilege are less appealing, than in the usual case."⁽³⁵²⁾

  Conclusion

A corporation is a legal fiction that must act through its principals and agents. When a corporation is subpoenaed to produce documents, it must act through an individual to comply. If it is possible for an alternate custodian to satisfactorily comply with a subpoena, then this avenue should be pursued. But, as Mr. Alito states:

Disobedience of a lawful subpoena for unprivileged documents should not be countenanced in order to protect the personal privilege of an individual who has accepted responsibility for conducting the affairs of an artificial entity, with the presumed knowledge that the entity's records are unprivileged.⁽³⁵³⁾

Not only has a corporation, big or small, voluntarily sought to conduct business under the corporate form, but the corporate documents were also created voluntarily. When a person assumes a position within such a corporation, or decides to incorporate his business, that person must also assume the responsibility of acting on behalf of the corporation. "Since the corporate representative enjoys the benefits of the corporate form, it is only fair that he be required to accept its incidental obligations."⁽³⁵⁴⁾ That includes the obligation of complying with a lawful subpoena to produce documents, even if documents may incriminate the individual as well as the corporation.

Neville S. Hedley^*

1. Mass. Const. art. 12.

2. See 8 J. Wigmore, Evidence in Trials at Common Law §§ 2251-2252 (J. McNaughton rev. ed. 1961) [hereinafter 8 Wigmore, Evidence] (discussing the policy, history, and application of the privilege). But see Eben Moglen, Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege Against Self-Incrimination, 92 Mich. L. Rev. 1086 (1994). See generally John H. Langbein, The Historical Origins of the Privilege Against Self-Incrimination at Common Law, 92 Mich. L. Rev. 1047 (1994); John H. Wigmore, The Privilege Against Self-Crimination; Its History, 15 Harv. L. Rev. 610 (1902).

3. See infra notes 148-86 and accompanying text.

4. In re John Doe Grand Jury Investigation, 418 Mass. 549, 637 N.E.2d 858 (1994); Commonwealth v. Doe, 405 Mass. 676, 544 N.E.2d 860 (1989).

5. See infra parts II.B, III.

6. See infra part IV.

7. See infra part II.A.

8. Boyd v. United States, 116 U.S. 616 (1886).

9. See infra part II.A.

10. See infra part II.B.

11. See infra part III.

12. See infra part IV.

13. See infra part V.

14. The term "collective entity doctrine" refers to the well-established rule that the privilege against self-incrimination is a personal privilege that may only be invoked by individuals, and not by artificial collective entities. 8 Wigmore, Evidence, supra note 2, § 2259a. Related to the collective entity doctrine is the "representative capacity doctrine." This doctrine refers to the theory that the representative of an entity or the custodian of an artificial entity's records may not invoke the privilege on behalf of himself or herself or the entity, in an attempt to thwart production of the entity's documents demanded by a subpoena duces tecum. 8 id. § 2259b. See generally Robert Heidt, The Fifth Amendment Privilege and Documents--Cutting Fisher's Tangled Line, 49 Mo. L. Rev. 439 (1984). Professor Heidt's article provides an excellent analysis of the development of Fifth Amendment jurisprudence regarding document production, the rationales underlying the Supreme Court's decisions, the complexities involved, and the difficulties encountered by lower courts when applying the Court's holdings. Id. Although the focus of Heidt's article argued that even sole proprietors should not be allowed to claim the privilege for documents (except in rare instances), his analysis is especially relevant because the petitioners in both Braswell v. United States, 487 U.S. 99, 102 (1988) and Commonwealth v. Doe, 405 Mass. 676, 678, 544 N.E.2d 860, 861 (1989) contended that the records of a closely-held corporation were essentially the records of a sole proprietorship.

15. The Fifth Amendment provides, in relevant part, "No person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V.

16. Boyd v. United States, 116 U.S. 616 (1886).

17. Id. at 618-20.

18. In the context of this Comment, "subpoena" generally refers to a "subpoena duces tecum," which is "[a] court process . . . compelling production of certain specific documents and other items . . . which . . . are in [the] custody and control of [a] person or body served with process." Black's Law Dictionary 1426 (6th ed. 1990) (citation omitted). This definition of "subpoena" differs from the more commonly used, "subpoena ad testificandum," which is "a command to appear . . . [and] give testimony upon a certain matter. Id.

19. Boyd, 116 U.S. at 618.

20. Id.

21. Id. at 622.

22. Id. The Fourth Amendment declares, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV.

23. Boyd, 116 U.S. at 633-35.

24. Id. at 633. "[W]e [are] unable to perceive that the seizure of a man's private books and papers is substantially different from compelling him to be a witness against himself." Id.

25. Id. at 627-28.

26. Id. at 630.

27. Id. at 628.

28. Samuel A. Alito, Jr., Documents and the Privilege Against Self-Incrimination, 48 U. Pitt. L. Rev. 27, 35-39 (1986). Mr. Alito, a former Deputy Assistant Attorney General, argued that Boyd's melding of the Fourth and Fifth Amendments was flawed. Id. at 36. He stated that the Fourth Amendment is broad, regulates procedures, and prevents only unreasonable searches and seizures. Id. By contrast, he claimed that the Fifth Amendment privilege is narrow, applies only to compelled self-incrimination, and that its prohibition is absolute. Id.

29. The rule held that "the government could search for and seize contraband because the person [or entity] in possession lacked title, but could not [search and] seize `mere evidence.'" Id. at 40 (citing Gouled v. United States, 255 U.S. 298, 309 (1921)). The category of items open to government seizure or compelled production has grown over the years to keep pace with the growing demands of law enforcement. See Marron v. United States, 275 U.S. 192, 199 (1927) (holding that ledgers and bills are instrumentalities of a crime and may be seized). But see United States v. Lefkowitz, 285 U.S. 452, 465 (1932) (holding that papers are not instrumentalities of crime).

30. Warden v. Hayden, 387 U.S. 294 (1967).

31. See Heidt, supra note 14, at 445 n.21; see also Alito, supra note 28, at 34 n.32 ("Widely circulated commercial documents are hardly private--but . . . [are] private property."); see also id. at 36.

32. See Heidt, supra note 14, at 447-49.

33. Hale v. Henkel, 201 U.S. 43 (1906).

34. Id. at 44-46.

35. Id. at 46.

36. Id.

37. Id.

38. Hale, 201 U.S. at 51.

39. Id. at 69.

40. Id. at 70.

41. Id. at 71-76. Despite the Court's failure to overrule Boyd, the Court conceded that there was a distinction between searches and seizures and the Fourth Amendment protection, and subpoenas and the Fifth Amendment protection. Id. at 73.

42. Id. at 74.

43. Hale, 201 U.S. at 74-75. The Court stated that it would be anomalous "to hold that a State, having chartered a corporation to make use of certain franchises, could not in the exercise of its sovereignty inquire how these franchises had been employed, and whether they had been abused, and demand the production of the corporate books and papers for that purpose." Id. at 75.

Moreover, according to the Court, because the federal government had the power to regulate interstate commerce, it, as well as the chartering state government, had the authority to demand corporate documents when engaging in a valid investigation. Id. Nevertheless, the Court made it clear that neither the state, nor the federal government had "a general visitatorial power over state corporations." Id.

44. Id. at 76-77. The Court held that "an order for the production of books and papers may constitute an unreasonable search and seizure within the Fourth Amendment." Id. at 76. Thus, under Boyd, the "compulsory production of private papers [by an individual or corporation], whether under a search warrant or a subpoena duces tecum," would demand the reasonableness test of the Fourth Amendment. Id.

45. Wilson v. United States, 221 U.S. 361 (1910).

46. Id. at 369.

47. Id. at 367-68. A second subpoena duces tecum was also directed to the company and was served on Wilson, the secretary, and five directors of the company. Id. at 370. The directors pressured Wilson to relinquish control of the documents demanded; but he refused, even after the board passed a resolution demanding that Wilson turn over the documents to the grand jury. Id. at 371.

48. Id. at 370. It is important to note that the subpoena simply directed the company to produce the documents, and did not demand any officer to offer oral testimony. Id.

49. Id. at 375-77.

50. Wilson, 221 U.S. at 375-76.

51. Id. at 376 (citing Hale, 201 U.S. at 76-77).

52. Id.

53. Id. at 378-80.

54. Id. at 376.

55. Wilson, 221 U.S. at 380. Justice McKenna's dissent, nevertheless, steadfastly held onto Boyd's absolutist position. Id. at 386-94 (McKenna, J., dissenting). McKenna believed that because of the private ownership of the documents, they, along with the custodian, should be protected by the privilege. Id. (McKenna, J., dissenting). Though the majority acknowledged the private property aspect of the Boyd case, it held that the private aspect of the documents required by Boyd was absent. Id. at 377-78; see also infra note 57 and accompanying text.

56. Dreier v. United States, 221 U.S. 394 (1911). The only significant difference between Dreier and Wilson was that the subpoena in Dreier was addressed to the corporate custodian of documents rather than to the corporation itself. Id. at 400.

57. Wilson, 221 U.S. at 380-84. The Court relied on Hale's government regulatory theory, and that the custodian, by accepting possession of the documents, could not deny examination by an outside authority or others in the company. Id. at 381-84; see also supra note 43 and accompanying text. The majority said that if the documents had been the private papers of the claimant, he would have been entitled to the privilege. Id. at 378-80.

58. See Perlman v. United States, 247 U.S. 7, 15 (1918). The Perlman decision did not have a significant impact on document production cases because it required that the claimant have possession of the documents to invoke the privilege. Id. The Court, struggling to work within Boyd's framework, concluded that the claimant had not retained a superior property right in the documents because the claimant had voluntarily submitted the documents, thus there had been no compulsion. Id.

59. United States v. White, 322 U.S. 694 (1944).

60. Id. at 695.

61. Id.

62. Id.

63. Id. at 696.

64. White, 322 U.S. at 696.

65. Id. at 698.

66. Id. at 699 (citing Essgee Co. v. United States, 262 U.S. 151 (1923); Wilson v. United States, 221 U.S. 361 (1910); Hale v. Henkel, 201 U.S. 43 (1906)).

67. Id. (citing Boyd v. United States, 116 U.S. 616 (1886)).

68. Id. (citing Boyd v. United States, 116 U.S. 616 (1886)). It is important to note, however, that the Boyd firm was not simply an individual invoking the privilege in a purely personal capacity. Boyd, 116 U.S. at 618. Rather, the firm sought the protection of the privilege to suppress shipping invoices (not personal papers). Id. The Boyd firm was a partnership engaged in the contracting business, and it is unlikely that the facts surrounding the Boyd case would survive either the White Court's analysis, or that of Hale or Wilson. See supra notes 33-66 and accompanying text.

69. White, 322 U.S. at 699.

70. Id. (citing Essgee Co. v. United States, 262 U.S. 151 (1923); Grant v. United States, 227 U.S. 74 (1913); Wheeler v. United States, 226 U.S. 478 (1913); Baltimore & Ohio R. Co. v. Interstate Commerce Comm'n, 221 U.S. 612 (1911); Dreier v. United States, 221 U.S. 394 (1910); Wilson v. United States, 221 U.S. 361 (1910)).

71. Id. at 700; see also supra notes 42, 43 and accompanying text.

72. White, 322 U.S. at 701.

73. Id. at 699-701.

74. Shapiro v. United States, 335 U.S. 1 (1948).

75. Id. at 4-5.

76. Id. at 5. The statute in question was 50 U.S.C. § 202(g) (1944), the Emergency Price Control Act, regarding the sale of fruit and produce. Shapiro, 335 U.S. at 5.

77. Shapiro, 335 U.S. at 15.

78. Id. at 16.

79. Id. at 19, 22-23.

80. Id. at 17-18.

81. Id. at 16-17; see also supra notes 42, 43 and accompanying text.

82. Shapiro, 335 U.S. at 26-27.

83. See infra notes 84-100 and accompanying text.

84. Curcio v. United States, 354 U.S. 118 (1957).

85. Id. at 118-19.

86. Id.

87. Id. at 119.

88. Id. The district court found Curcio guilty of contempt on the ground that his "claim of the privilege was improper because he had not made a sufficient showing that his answers might incriminate him." Id. at 120-21. The conviction was based solely on Curcio's failure to answer questions pursuant to the subpoena ad testificandum, and not on his failure or the union's failure to produce the subpoenaed records. Id. at 121.

On appeal, the government dropped its allegation that Curcio had not made a sufficient showing that his answers regarding the documents' whereabouts might incriminate him. Id. The only issue on appeal was whether Curcio was entitled to the personal privilege against self-incrimination with regard to questions relating to the location of the unproduced union documents. Id. at 122.

89. United States v. White, 322 U.S. 694 (1944). See supra notes 59-73 and accompanying text.

90. Wilson v. United States, 221 U.S. 361 (1910). See supra notes 45-57 and accompanying text.

91. Hale v. Henkel, 201 U.S. 43 (1906). See supra notes 33-44 and accompanying text.

92. Curcio, 354 U.S. at 123.

93. Id.

94. United States v. Austin-Bagley Corp., 31 F.2d 229, 233-34 (5th Cir. 1929) (holding that a custodian of corporate records must not only produce the records because of their semi-public nature, but also must authenticate them).

95. Curcio, 354 U.S. at 125, 126 n.4. The Court concluded that "[r]equiring the custodian to identify or authenticate the documents . . . merely makes explicit what is implicit in the production itself. The custodian is subjected to little, if any, further danger of incrimination." Id. at 125. According to the Court, "forcing the custodian to testify orally as to the whereabouts of nonproduced records requires him to disclose the contents of his own mind," thus violating the Fifth Amendment. Id. at 128.

96. Id. at 125.

97. Id.

98. Id. at 124 (citing Shapiro, 335 U.S. at 27).

99. Id. at 128.

100. Curcio, 354 U.S. at 128.

101. Bellis v. United States, 417 U.S. 85 (1974).

102. Id.

103. See generally Heidt, supra note 14, at 450-70 (describing the development of the privacy rationale and criticizing the rationale by pointing to major inconsistencies).

104. Bellis, 417 U.S. at 86. The partnership dissolved when Bellis left for another firm, but the two remaining partners formed a new partnership. Id. Curiously, the grand jury subpoenaed the firm's papers for the purpose of a tax investigation of Bellis personally, a fact Justice Marshall's majority opinion failed to emphasize. See id. at 86; see also id. at 101 (Douglas, J., dissenting).

105. Id. at 86.

106. Id.

107. Justice Marshall stated that "[i]t is well settled that no privilege can be claimed by the custodian of corporate records, regardless of how small the corporation may be." Id. at 100. (citing Grant v. United States, 227 U.S. 74 (1913); Fineberg v. United States, 393 F.2d 417, 420 (9th Cir. 1968); Hair Indus. Ltd. v. United States, 340 F.2d 510 (9th Cir. 1965)). Justice Marshall, however, seemed to contradict himself when he joined in the Braswell dissent. See Braswell v. United States, 487 U.S. 99, 119-30 (Kennedy, J., dissenting). For a discussion of the Bras-well decision, see infra notes 148-86 and accompanying text.

108. Bellis, 417 U.S. at 88-92; see also supra notes 33-73 and accompanying text.

109. Bellis, 417 U.S. at 95.

110. Id. at 96-99 (citing Pa. Stat. Ann., tit. 59, §§ 13, 51(e), 51(h), 52, 54, 55, 72(2)(A) (1964)). Bellis's two former partners had been willing to comply with the subpoena, before they realized that Bellis had appropriated the records. Id. at 99.

111. Id. at 87, 88, 91; see also id. at 101-05 (Douglas, J., dissenting). The majority stated that "[p]rotection of individual privacy was the major theme running through the Court's decision in Boyd." Id. at 91 (citing Boyd, 116 U.S. at 630). This is incorrect, for the documents held by the Boyd partnership (shipping invoices) were anything but private papers. See Boyd, 116 U.S. at 618. Justice Douglas mistakenly relied on Boyd in his dissent. See Bellis, 417 U.S. at 102-03 (Douglas, J., dissenting). He too believed Boyd stood for privacy, and was convinced that the documents were held in a personal capacity; therefore, he disagreed with extending the collective entity doctrine to a three-man partnership. Id. (Douglas, J., dissenting).

112. Bellis, 417 U.S. at 92. This, however, is exactly what the Boyd decision protected. See supra notes 16-31 and accompanying text.

113. Id. at 92.

114. Id. at 92-93.

115. See id.

116. Fisher v. United States, 425 U.S. 391 (1976).

117. Fisher consisted of two related cases joined together for appeal, Fisher v. United States and United States v. Kasmir. Fisher, 425 U.S. at 391.

118. Fisher, 425 U.S. at 396.

119. Id.

120. Couch v. United States, 409 U.S. 322 (1973). Couch held that a taxpayer's Fifth Amendment rights were not violated when the government sought to compel production of the taxpayer's records which were in possession of her accountant. Id. at 329. The Court believed that there was no personal compulsion involved with turning over the documents. Id.

121. Fisher, 425 U.S. at 396.

122. Id. at 399 (citing Couch v. United States, 409 U.S. 322, 335-36 (1973); Tehan v. United States ex rel. Shott, 382 U.S. 406, 416 (1966); Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52, 55 (1964); Davis v. United States, 328 U.S. 582, 587 (1946)). The Court, however, acknowledged that the Fourth Amendment is the primary vehicle for protecting privacy interests, and that the Fifth Amendment is not an all-encompassing general protector of privacy. Id. at 400-01.

123. Id. at 399.

124. Id.

125. Id. at 403-04.

126. Fisher, 425 U.S. at 403-04 (citing Grant v. United States, 227 U.S. 74, 79-80 (1913); Falsone v. United States, 205 F.2d 734 (5th Cir. 1953); Sovereign Camp, W.O.W. v. Reed, 94 So. 910 (Ala. 1922); Andrews v. Mississippi R. Co., 98 N.E. 49 (Ind. 1860); Palatini v. Sarian, 83 A.2d 24 (N.J. 1951); Pearson v. Yoder, 134 P. 421 (Okla. 1913); State ex rel. Sowers v. Olwell, 394 P.2d 681 (Wash. 1964); C. McCormick, Evidence § 90, at 185 (2d ed. 1972); 8 J. Wigmore, Evidence in Trials at Common Law § 2307 (J. McNaughton rev. ed. 1961) (parallel citations omitted)).

127. See Heidt, supra note 14, at 470-82 (analyzing faults and inconsistencies of the privacy rationale).

128. Fisher, 425 U.S. at 408. The Court cited a number of previous Fifth Amendment cases to support this proposition. Id. (citing United States v. Wade, 388 U.S. 218, 222-23 (1967) (holding that compelled voice exemplars were not privileged); Gilbert v. California, 388 U.S. 263, 265-67 (1967) (holding that compelled handwriting exemplars were not privileged); Schmerber v. California, 384 U.S. 757, 763-64 (1966) (holding that compelled blood samples were not privileged); Holt v. United States, 218 U.S. 245, 252-53 (1910) (compelling accused to wear certain item of clothing at trial not privileged)).

129. Id. at 409.

130. Id.

131. Id. at 410-11.

132. Id. at 411. The Court did leave the door open for future document production cases by stating, "whether the tacit averments of the taxpayer are both `testimonial' and `incriminating' for purposes of applying the [privilege]" were questions difficult to answer, and "their resolution may . . . depend on the facts and circumstances of particular cases." Id. at 410.

133. Fisher, 425 U.S. at 410-11.

134. Id. Massachusetts also adheres to a compelled testimony standard. See Paul J. Liacos, Handbook of Massachusetts Evidence § 13.13.2, at 779-85 (6th ed. 1994) (stating that the availability of the privilege attaches when three conditions are met: (1) government compels witness to furnish evidence; (2) evidence is testimonial; and (3) evidence must expose the witness to a reasonable possibility of incrimination at a criminal proceeding).

135. The Court stated: "[w]hether the Fifth Amendment would shield the taxpayer from producing his own tax records in his possession is a question not involved here; for the papers demanded here are not his `private papers.'" Fisher, 425 U.S. at 414 (citing Boyd 116 U.S. at 34-35). Clearly, the fact that the documents in question were voluntarily prepared by another (the accountant), had significant bearing on the Court's reasoning. Id. at 409-10. This being the case, neither the contents of the documents, nor the act of producing them were privileged. Id. at 410-11.

136. United States v. Doe, 465 U.S. 605 (1984). Prior to United States v. Doe, the Court reiterated the compelled testimony standard. In Andresen v. Maryland, 427 U.S. 463, 472-77 (1976), the Court held that a person's business records seized during a lawful search could be offered into evidence against that person, and that the privilege did not apply. The Court, relying on Fisher, noted that the records were voluntarily prepared and were lawfully seized by law enforcement officials, therefore, the defendant was not compelled to offer any testimony against himself by their admission. Id. at 473. According to the Court, "`[a] party is privileged from producing the evidence but not from its production.'" Id. (quoting Johnson v. United States, 228 U.S. 457, 458 (1913)).

137. Doe, 465 U.S. at 606-07.

138. Id.

139. Id. at 608-09; see also In re Grand Jury Impaneled March 19, 1980, 680 F.2d 327 (3d Cir. 1982) [hereinafter In re Grand Jury]. The Third Circuit held that the business records of a sole proprietorship were indistinguishable from the individual owner's personal papers. In re Grand Jury, 680 F.2d at 335. Producing the documents would admit their existence and authenticity, and would therefore be testimonial. Id. But see Doe, 465 U.S. at 610, 611-12 n.9.

140. Doe, 465 U.S. at 610-12.

141. Id. at 612; see also supra notes 128-32.

142. Doe, 465 U.S. at 613-14; see also In re Grand Jury, 680 F.2d at 335 (noting that act of production would incriminate because act had communicative aspects); Doe, 465 U.S. at 609 n.6.

143. Doe, 465 U.S. at 613. The Court was unwilling to reverse a factual finding by the District Court which was subsequently upheld by the Third Circuit. Id. at 614.

144. Id. at 617.

145. Id. at 613-17.

146. Id. Although the Doe holding was later limited to its facts by the Braswell opinion, the holding is still good law. See infra notes 148-86 and accompanying text for a discussion of Braswell v. United States, 487 U.S. 99 (1988).

147. See Alito, supra note 28, at 45-51; Heidt, supra note 14, at 473-82.

148. Braswell v. United States, 487 U.S. 99 (1988).

149. Id. at 100-01.

150. Id. at 101.

151. Id.

152. Id. at 101-02.

153. In re Grand Jury Proceedings, 814 F.2d 190, 193 (5th Cir. 1987). Other circuits had held to the contrary. See In re Grand Jury No. 86-3 (Will Roberts Corp.), 816 F.2d 569, 573 (11th Cir. 1987); United States v. Lang, 792 F.2d 1235, 1240 (4th Cir.), cert. denied, 479 U.S. 985 (1986).

154. Braswell, 487 U.S. at 101-02 (citing In re Grand Jury Proceedings, 814 F.2d 190, 193 (5th Cir. 1987)).

155. Id. at 103.

156. See supra notes 116-47 and accompanying text.

157. Braswell, 487 U.S. at 104 ("[C]orporations and other collective entities are treated differently from individuals.").

158. Id. at 108 (quoting Bellis, 417 U.S. at 100). Ironically, Justice Marshall, who had written the Bellis opinion, joined Justice Kennedy's dissent in Braswell. See supra note 107.

159. Braswell, 487 U.S. at 109.

160. Id.

161. Id.

162. Id. at 109-10. See supra note 14 for a discussion of the collective entity and representative capacity doctrines.

163. Braswell, 487 U.S. at 109-10.

164. Id. at 110.

165. Id.

166. See supra notes 128-35 and accompanying text.

167. Braswell, 487 U.S. at 111. The Court also stated that Braswell's reliance on the Doe case was misplaced, for Doe involved a sole proprietor. Id. at 111 n.5. A sole proprietor, according to the Court, did not hold documents in a representative capacity. Id. For a detailed criticism of Fisher, Doe, and the act of production privilege, see generally Heidt, supra note 14.

168. Braswell, 487 U.S. at 112-14.

169. Id. at 115.

170. Id. at 116.

171. See 18 U.S.C. §§ 6002-6003 (1982).

172. Braswell, 487 U.S. at 116. The Court made clear that when a corporation is subpoenaed, it must find a means to comply. Id. Lower courts had commonly used the appointment of an alternate custodian to ensure the corporation complied with the subpoena. See, e.g., In re Grand Jury No. 86-3 (Will Roberts Corp.), 816 F.2d 569, 573 (11th Cir. 1987); United States v. Lang, 792 F.2d 1235, 1240-41 (4th Cir.), cert. denied, 479 U.S. 985 (1986); In re Two Grand Jury Subpoena Duces Tecum, 769 F.2d 52, 57 (2d Cir. 1985).

The approach set forth in Braswell is similar to what the Commonwealth argued for in In re John Doe Grand Jury Investigation, 418 Mass. 549, 637 N.E.2d 858 (1994). See infra notes 252-75 and accompanying text.

173. Braswell, 487 U.S. at 116. The dissent, however, had different views regarding immunity. Id. at 119-30 (Kennedy, J., dissenting). But see generally Alito, supra note 28 (offering an in-depth analysis of granting act of production immunity).

174. Braswell, 487 U.S. at 116. The concurring and dissenting opinions of In re John Doe Grand Jury Investigation appeared to have agreed with this proposition. 418 Mass. at 555-57, 637 N.E.2d at 862-63 (Wilkins, J., concurring and Liacos, C.J., dissenting). See infra notes 276-96 and accompanying text.

175. Braswell, 487 U.S. at 116-17.

176. Id.

177. Id. at 117.

178. Id. (citing Kastigar v. United States, 406 U.S. 444, 461-62 (1972)).

179. Kastigar v. United States, 406 U.S. 444, 461-62 (1972).

180. Id.

181. Braswell, 487 U.S. at 117.

182. Id. at 117-18.

183. Id. at 118.

184. Id.

185. Id.

186. Braswell, 487 U.S. at 118.

187. Commonwealth v. Doe, 405 Mass. 676, 544 N.E.2d 860 (1989).

188. See infra notes 189-226 and accompanying text.

189. Commonwealth v. Hughes, 380 Mass. 583, 404 N.E.2d 1239, cert. denied, 449 U.S. 900 (1980).

190. Id. at 583-84, 404 N.E.2d at 1240.

191. Id. Hughes had apparently registered the suspected pistol as required by state law. Id.; see also Mass. Gen. L. ch. 140, § 128B (1968) (requiring the registration of all firearms with the commissioner of public safety).

192. Hughes, 380 Mass. at 585, 404 N.E.2d at 1240.

193. Id. at 585-86, 404 N.E.2d at 1240-41.

194. Id. at 586-87, 404 N.E.2d at 1241.

195. Id. at 587, 404 N.E.2d at 1241.

196. Id.; see also supra notes 15-31 and accompanying text.

197. Hughes, 380 Mass. at 588, 404 N.E.2d at 1242. The SJC cited Schmerber v. California, 384 U.S. 757, 763-64 (1966), when it stated that "the protection of the privilege extends to `an accused's communications, whatever form they might take.'" Hughes, 380 Mass. at 588, 404 N.E.2d at 1242 (quoting Schmerber, 384 U.S. at 763-64).

198. Hughes, 380 Mass. at 588, 404 N.E.2d at 1242 (citing Fisher, 425 U.S. at 408); see also supra notes 122-35 and accompanying text.

199. Hughes, 380 Mass. at 588, 404 N.E.2d at 1242.

200. Schmerber v. California, 384 U.S. 757 (1966).

201. Hughes, 380 Mass. at 588-89, 404 N.E.2d at 1242-43 (citing Schmerber, 384 U.S. at 763-64).

202. Id. at 589-90, 404 N.E.2d at 1243. The items to be produced were: in Fisher, accountants' papers, and in Schmerber, a blood sample from a witness. See Fisher, 425 U.S. at 396; Schmerber, 384 U.S. at 763-64.

203. Hughes, 380 Mass. at 592-93, 404 N.E.2d at 1244.

204. Id. at 593, 404 N.E.2d at 1245.

205. The SJC's opinion expressed doubt that its decision would have differed had the Commonwealth been willing and able to authenticate the pistol simply by its serial number, and would not have offered in trial the fact that Hughes had produced the weapon. Hughes, 380 Mass. at 594, 404 N.E.2d at 1245. In the court's view, such circumstances would still result in Hughes being compelled to produce testimonial and incriminating evidence against himself. Id., 404 N.E.2d at 1245. It is important to note, however, that Hughes was merely an individual accused of a crime, and not the representative of an artificial entity.

206. See supra note 128.

207. Commonwealth v. Brennan, 386 Mass. 772, 438 N.E.2d 60 (1982). The case was the consolidated hearing of two separate cases, Brennan, and Commonwealth v. Knockel. See Brennan, 386 Mass. at 772, 438 N.E.2d at 60.

208. Brennan, 386 Mass. at 774-75, 438 N.E.2d at 61-62; see also Mass. Gen. L. ch. 90, § 24(1)(f) (1994).

209. Brennan, 386 Mass. at 776, 438 N.E.2d at 63 (quoting Schmerber, 384 U.S. at 764); see also supra note 128.

210. Brennan, 386 Mass. at 776, 438 N.E.2d at 63.

211. Id. at 777, 438 N.E.2d at 64. The SJC agreed with the United States Supreme Court when it stated that "evidence that is `testimonial' or `communicative' in nature is that which reveals the subjective knowledge or thought processes of the subject." Id. (citing Schmerber, 384 U.S. at 761 n.5).

212. Id. at 779-83, 438 N.E.2d at 65-66.

213. Id. at 780, 438 N.E.2d at 65-66.

214. Id. at 783, 438 N.E.2d at 67. It is important to note that the SJC did acknowledge that the language of Article 12 was broader than that of the Fifth Amendment. Id. at 779-80, 438 N.E.2d at 65. Nevertheless, the SJC declined to interpret Article 12 as overly expansive:

The refusal of most courts to adopt an expansive interpretation of the privilege has undoubtedly stemmed in part from a concern for the severe constraints on law enforcement practices that would otherwise result, and from the fact that compelled production of physical evidence is far less offensive to common standards of decency.Id. at 782-83, 438 N.E.2d at 67.

215. Attorney Gen. v. Colleton, 387 Mass. 790, 444 N.E.2d 915 (1982).

216. United States v. White, 322 U.S. 694 (1944). See supra notes 59-73 and accompanying text.

217. Bellis v. United States, 417 U.S. 85 (1974). See supra notes 101-14 and accompanying text.

218. Fisher v. United States, 425 U.S. 391 (1976). See supra notes 116-36 and accompanying text.

219. Kastigar v. United States, 406 U.S. 441 (1972).

220. Id. at 453.

221. Id. Kastigar differentiated the types of immunity. Id. Absolute, or transactional immunity, was described as a grant of "full immunity from prosecution for the offense to which the compelled testimony relates." Id. Use and derivative-use immunity was determined by the Court to be a grant of "[i]mmunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom." Id.

222. Colleton, 387 Mass. at 795-99, 444 N.E.2d at 917-21. In a 1992 decision, the SJC again "held that art[icle] 12 requires a broader interpretation than that of the Fifth Amendment." Opinion of the Justices to the Senate, 412 Mass. 1201, 1210, 591 N.E.2d 1073, 1078 (1992). The SJC, contrary to the United States Supreme Court, determined that evidence of a defendant's refusal to take an alcohol breath test violated the privilege against self-incrimination. Id. For the Supreme Court's view, see South Dakota v. Neville, 459 U.S. 553, 562-63 (1982) (holding that admission of refusal evidence is not violative of Fifth Amendment privilege against self-incrimination). For a thorough comparison and critique of the SJC and Supreme Court holdings, see Joseph F. Stanton, Note, SJC Steers Off Course: DUI Breath Test Refusals Inadmissible, 28 New Eng. L. Rev. 1169 (1994).

223. See supra notes 73-82.

224. Stornanti v. Commonwealth, 389 Mass. 518, 451 N.E.2d 707 (1983).

225. Id. at 526, 451 N.E.2d at 713.

226. Id. (citing Brennan, 386 Mass. at 779-80, 438 N.E.2d at 65 (also refusing to give expansive interpretation to Article 12)); see also supra notes 73-82 and accompanying text. In 1987, the SJC reaffirmed the Stornanti holding. See In re Kenney, 399 Mass. 431, 438, 504 N.E.2d 652, 656-57 (1987). Kenney, an attorney facing a disbarment action, argued that the act of producing the documents would be self-incriminating and thus privileged. Id. The SJC, however, believed that the protection of the privilege was unavailable because it determined that the documents fell within the required records exception. Id.

In a footnote, the SJC agreed with the First Circuit's interpretation of the Fisher and Doe decisions. Id. at 441 n.8, 504 N.E.2d at 658 n.8. The First Circuit took the position that the privilege is limited to circumstances in which production has a testimonial nature. In re Kave, 760 F.2d 343, 355 (1st Cir. 1985). In addition, the SJC believed that the privilege would apply when an "individual was asked to give oral testimony requiring a restatement or affirmation." In re Kenney, 399 Mass. at 441 n.8, 504 N.E.2d at 658 n.8.

227. Commonwealth v. Doe, 405 Mass. 676, 544 N.E.2d 860 (1989).

228. Id., 544 N.E.2d at 860-61.

229. Id. at 677, 544 N.E.2d at 861.

230. Id.

231. Id.

232. Doe, 405 Mass. at 677, 544 N.E.2d at 861.

233. Id.

234. Id. The judge did not make any ruling regarding whether either the materials demanded under the subpoena, or the act of production would indeed tend to incriminate the witness or the corporation. The judge simply concluded that the witness was not entitled to withhold the materials even if they were incriminating. Id. at 677-78 n.2, 544 N.E.2d at 861 n.2.

235. Id. at 678 n.3, 544 N.E.2d at 861 n.3.

236. Id. at 678, 544 N.E.2d at 861.

237. Doe, 405 Mass. at 678, 544 N.E.2d at 861 (citing Colleton, 387 Mass. at 795-96, 444 N.E.2d at 918-19); see also supra notes 215-22.

238. Doe, 405 Mass. at 679, 544 N.E.2d at 862 (citing Hughes, 380 Mass. at 588-92, 404 N.E.2d at 1242-44); see also supra notes 188-204.

239. Doe, 405 Mass. at 679, 544 N.E.2d at 862 (citing Hughes, 380 Mass. at 592, 404 N.E.2d at 1244).

240. Doe, 405 Mass. at 679, 544 N.E.2d at 862.

241. See supra notes 148-86 and accompanying text.

242. Doe, 405 Mass. at 679, 544 N.E.2d at 862.

243. Id.

244. Id. at 679-80, 544 N.E.2d at 862. The SJC also rejected the Commonwealth's argument that by doing business as a corporation, the witness had waived his privilege. Id. According to the court, such a waiver had to be "knowing and intelligent." Id. at 680, 544 N.E.2d at 862 (citing Blaisdell v. Commonwealth, 372 Mass. 753, 764, 364 N.E.2d 91, 97 (1977)).

245. Id. at 680, 544 N.E.2d at 863.

246. Blaisdell v. Commonwealth, 372 Mass. 753, 761, 364 N.E.2d 191, 197-98 (1977).

247. Doe, 405 Mass. at 680, 544 N.E.2d at 863 (citing Blaisdell, 372 Mass. at 761, 364 N.E.2d at 197-98).

248. Id. at 681, 544 N.E.2d at 863. The SJC noted that its decision was not a novel one. Id. at 681 n.5, 544 N.E.2d at 683 n.5. Prior to Braswell, several United States Circuit Courts of Appeal had reached a similar result under the Fifth Amendment to the SJC's opinion in Doe regarding Article 12. See, e.g., In re Sealed Case, 832 F.2d 1286, 1279 (D.C. Cir. 1987); In re Grand Jury No. 86-3 (Will Roberts Corp.), 816 F.2d 569, 572-73 (11th Cir. 1986); United States v. Lang, 792 F.2d 1235, 1240-41 (4th Cir.), cert. denied, 479 U.S. 985 (1986). Doe, 405 Mass. at 681 n.5, 544 N.E.2d at 863 n.5. It is important to note that, although these cases upheld an individual custodian privilege when the act of production might have incriminated the custodian individually, they did hold that a corporation was obligated to produce the documents in some manner. See infra notes 298-316 and accompanying text.

249. Doe, 405 Mass. at 681 n.4, 544 N.E.2d at 863 n.4.

250. In re John Doe Grand Jury Investigation, 418 Mass. 549, 637 N.E.2d 858 (1994) [hereinafter cited as John Doe].

251. See supra notes 227-34 and accompanying text.

252. The SJC opinion incorrectly identified the witnesses as brothers. John Doe, 418 Mass. at 550, 637 N.E.2d at 859.

253. Brief for the Commonwealth at 3, John Doe, 418 Mass. 549, 637 N.E.2d 858 (1994) (No. 93-P-1270); see also John Doe, 418 Mass. at 550, 637 N.E.2d at 859.

254. The grand jury was investigating alleged bribes paid by the LeBoeufs' corporation to landfill workers, allowing the LeBoeufs to illegally dump refuse. Brief for the Commonwealth at 3, John Doe (No. 93-P-1270).

In October of 1993, while the appeal was pending, the grand jury returned indictments against the LeBoeufs for the following offenses: one count each for offering corrupt gifts (Mass. Gen. L. ch. 268A, § 2 (1994)); and one count each for conspiring to offer corrupt gifts (Mass. Gen. L. ch. 274, § 7 (1994), Mass. Gen. L. ch. 268A, § 2 (1994)); see also Brief for the Commonwealth at 3 n.2, John Doe (No. 93-P-1270).

In October of 1994, after a plea arrangement with the Commonwealth, the senior LeBoeuf pleaded guilty and received a jail term (partially suspended) and agreed to pay $25,000 in restitution. Telephone interview with Mr. Steve Prunier, Worcester County Assistant District Attorney (Oct. 17, 1994). His son received a suspended jail sentence and agreed to pay $25,000 restitution. Id.

255. In effect, there were three subpoenas, one to the corporation and one to each of the witnesses requiring them to testify. John Doe, 418 Mass. at 550, 637 N.E.2d at 859. The Commonwealth conceded that the subpoenas requiring the witnesses to testify could not be maintained under either the Fifth Amendment or Article 12. Id.; see also In re John Doe Grand Jury Investigation, No. 93-0340 (Worcester County Superior Court, May 25, 1993) (memorandum of decision and order of Judge Toomey granting motion to quash subpoena) [hereinafter Order of Judge Toomey] (located in Brief for the Commonwealth, Record Appendix 5, John Doe (No. 93-P-1270).

The subpoena duces tecum, addressed to the corporation, directed the corporation to produce:

[A]ny and all records of all commercial and residential accounts as well as daily pickups, [roll-offs] including customer list, all billing and payment records, container sizes, and frequency of pickups from 1-1-89 to the present date [3-10-93].

 . . . [A]ny and all records of where materials picked up from customers [were] disposed of including names and addresses of disposal sites, payment records, and container sizes from 1-1-89 to the present date [3-10-93].John Doe, 418 Mass. at 550 n.1, 637 N.E.2d at 859 n.1 (second and fifth alterations in original); see also Brief for the Commonwealth, Record Appendix 2 at 3, John Doe (No. 93-P-1270) (subpoena duces tecum).

256. John Doe, 418 Mass. at 550, 637 N.E.2d at 859.

257. Id., 637 N.E.2d at 859; see also Brief for the Commonwealth at 2, John Doe (No. 93-P-1270).

258. John Doe, 418 Mass. at 550, 637 N.E.2d at 859; see also Order of Judge Toomey, supra note 255, at 5-6.

259. John Doe, 418 Mass. at 550, 637 N.E.2d at 859. See Mass. Gen. L. ch. 211, § 3 (1995) (extraordinary relief provisions); see also Brief for the Commonwealth at 2-3, John Doe (No. 93-P-1270).

260. John Doe, 418 Mass. at 552, 637 N.E.2d at 860.

261. Id. See supra notes 33-44, 58-72, 100-13 and accompanying text for discussions of the Hale, White, and Bellis decisions.

262. John Doe, 637 N.E.2d at 860 (citing Commonwealth v. Beneficial Fin. Co., 360 Mass. 188, 264, 275 N.E.2d 33, 77 (1971), cert. denied, 407 U.S. 910, and cert. denied, 407 U.S. 914 (1972); Commonwealth v. Wood, 302 Mass. 265, 269, 19 N.E.2d 320, 323 (1939); and Ross v. Crane, 291 Mass. 28, 32-33, 195 N.E. 884, 886 (1935)); see also Commonwealth v. Doe, 405 Mass. 676, 679, 544 N.E.2d 860, 862 (1989).

263. John Doe, 418 Mass. at 552, 637 N.E.2d at 860.

264. Id., 637 N.E.2d at 861.

265. Id. at 553, 637 N.E.2d at 861; see also supra notes 238-51 and accompanying text.

266. John Doe, 418 Mass. at 553, 637 N.E.2d at 861.

267. Id.; see also Brief for the Commonwealth at 5-6, John Doe (No. 93-P-1270).

268. Brief for the Commonwealth at 8, John Doe (No. 93-P-1270). The Commonwealth argued that allowing the LeBoeufs to claim the privilege and denying the appointment of an alternate custodian would effectively preclude the criminal investigation. Id. The Commonwealth further argued that it would have no other means of obtaining the evidence of corporate wrongdoing. Id. According to the Commonwealth, the trial court's decision effectively shielded the LeBoeufs and their corporate wrongdoing. Id. If such a ruling were allowed to stand, the Commonwealth maintained, it would result in a "drastic impact" on corporate criminal investigations. Id.

269. John Doe, 418 Mass. at 553, 637 N.E.2d at 861.

270. Id.

271. Id. (citing In re Grand Jury No. 86-3 (Will Roberts Corp.), 816 F.2d 569, 574 (11th Cir. 1987)). The In re Grand Jury No. 86-3 (Will Roberts Corp.) case was noted prominently in the Commonwealth's Appellate Brief. See Brief for the Commonwealth at 5-7, John Doe (No. 93-P-1270).

The case held that the owner of a one-shareholder corporation could not assert the Fifth Amendment privilege for the act of producing documents, for "the act of implicitly acknowledging the existence and possession of corporate records by turning them over to a third party agent . . . is not sufficiently testimonial to trigger the privilege given the non-private nature of corporate records." In re Grand Jury No. 86-3 (Will Roberts Corp.), 816 F.2d at 571.

272. John Doe, 418 Mass. at 553, 637 N.E.2d at 861. For a discussion of the Commonwealth v. Doe holding, see supra notes 238-51 and accompanying text. The SJC, in the John Doe opinion, agreed with one aspect of the Supreme Court's Braswell decision: the fact that "[t]he corporation's act of production of the documents cannot be used to incriminate a particular individual." John Doe, 418 Mass. at 553 n.4, 637 N.E.2d at 861 n.4 (citing Braswell, 487 U.S. at 118).

273. John Doe, 418 Mass. at 554, 637 N.E.2d at 861 (citation omitted) (quoting In re Two Grand Jury Subpoena Duces Tecum, 769 F.2d 52, 57 (2d Cir. 1985) (citing United States v. Barth, 745 F.2d 184, 189 (2d Cir. 1984), cert. denied, 470 U.S. 1004 (1985))).

274. Id. at 553-54, 637 N.E.2d at 861.

275. Id. at 554, 637 N.E.2d at 862. Clearly, requiring a witness to assist the alternate keeper would be testimonial. See id. at 555, 637 N.E.2d at 862 (Wilkins, J., concurring).

276. Id. at 555, 637 N.E.2d at 862 (Wilkins, J., concurring).

277. Id. (Wilkins, J., concurring).

278. John Doe, 418 Mass. at 555, 637 N.E.2d at 862 (Wilkins, J., concurring).

279. See Order of Judge Toomey, supra note 255, at 5. Judge Toomey stated that "[t]he status of any appointee as a private citizen would not change the fact that that person would be acting as an agent for the Commonwealth in seizing the corporate documents." Id.

280. John Doe, 418 Mass. at 555, 637 N.E.2d at 862 (Wilkins, J., concurring).

281. Id. (Wilkins, J., concurring).

282. Id. (Wilkins, J., concurring).

283. Id. (Wilkins, J., concurring).

284. Id. at 557, 637 N.E.2d at 863 (Liacos, C.J., dissenting).

285. John Doe, 418 Mass. at 556, 637 N.E.2d at 862 (Liacos, C.J., dissenting) (citing Doe, 405 Mass. at 679, 544 N.E.2d at 862 (citing Braswell, 487 U.S. at 109-10)).

286. Id. (Liacos, C.J., dissenting).

287. Id. (Liacos, C.J., dissenting) (quoting American Heritage Dictionary 500 (2d C. ed. 1991)).

288. Id. (Liacos, C.J., dissenting) (quoting American Heritage Dictionary 500 (2d C. ed. 1991)).

289. Id., 637 N.E.2d at 862-63 (Liacos, C.J., dissenting).

290. John Doe, 418 Mass. at 556-57, 637 N.E.2d at 862-63 (Liacos, C.J., dissenting).

291. Id., 637 N.E.2d at 863 (Liacos, C.J., dissenting).

292. Id. at 557, 637 N.E.2d at 863 (Liacos, C.J., dissenting) (quoting Order of Judge Toomey, supra note 255, at 5).

293. Id. (Liacos, C.J., dissenting) (quoting Order of Judge Toomey, supra note 255, at 5).

294. Id. (Liacos, C.J., dissenting) (quoting Order of Judge Toomey, supra note 255, at 5).

295. John Doe, 418 Mass. at 557, 637 N.E.2d at 863 (Liacos, C.J., dissenting) (alteration in original) (quoting Order of Judge Toomey, supra note 255, at 5); see also Commonwealth v. A Juvenile (No. 2), 411 Mass. 157, 580 N.E.2d 1014 (1992), cited in Order of Judge Toomey, supra note 255, at 5.

296. John Doe, 418 Mass. at 555, 637 N.E.2d at 862 (Wilkins, J., concurring); id. at 555-57, 637 N.E.2d at 862-63 (Liacos, C.J., dissenting).

297. A corporation or organization with a sufficient number of members or employees will be able to appoint an alternate custodian who has knowledge of the documents and who will not implicate her privilege against self-incrimination by the act of producing the demanded documents. See Alito, supra note 28, at 70-71.

This approach has been noted with approval by commentators in favor of the act of production privilege for entity custodians, as well as those who believe that the collective entity/representative capacity