This Article addresses a long-unresolved issue in criminal and constitutional law: Does the Fifth Amendment provide any protection against compelled production of incriminating personal documents in the possession of an individual who is a subject or target of a criminal investigation? The Supreme Court has not definitively addressed this important question, and the case law reflects deep disagreement on an issue of great significance to criminal law enforcement. The issue has been unresolved since 1976, when the Supreme Court redefined the scope of the Fifth Amendment privilege against self-incrimination in Fisher v. United States and held that the privilege does not bar compelled production of incriminating documents. This Article examines the development of the law up to and since Fisher , and concludes that the Supreme Court's 2000 decision in United States v. Hubbel has, at least in practical effect, diminished the impact of Fisher and resotred Fifth Amendment protection to many private papers in the possession of individuals. This Article analyzes the likely impact of the Hubbell decision on criminal law enforcement and concludes that after Hubbell prosecutors in many cases may be more likely to use search warrants, rather than subpoenas, to obtain personal documents from individuals who are subjects or targets of an investigation - if, that is, they can satisfy the Fourth Amendment's particularity and probable cause requirements. If prosecutors cannot satisfy these Fourth Amendment requirements, then after Hubbell they no longer can be confident that they can compel the production of private papers by subpoena and immunity grant and subsequently use the contents of those papers to prosecute the individual who produced them. These changes flow directly from the Hubbell decision, and they represent a major "power shift" from prosecutors to defense counsel in white collar criminal investigations and prosecutions.
Am. J. Crim. L.
Lance Cole, The Fifth Amendment and Compelled Production of Personal Documents after United States v. Hubbel - New Protection for Private Papers, 29 Am. J. Crim. L. 123 (2002).