Vanderbilt Law Review

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Americans have always taken particular pride in the right to be free from government intrusion into their homes and, metaphysically speaking, their minds. The authors of the Bill of Rights carved out this protective zone in the Fourth and Fifth Amendments to the United States Constitution.' While modern Fourth Amendment protection has most often been interpreted as a privacy-based protection, the Fifth Amendment's Self-Incrimination Clause protects against government compulsion to implicate oneself in the commission of a crime. The development of the Fifth Amendment privilege reflects many of this nation's "fundamental values and most noble aspirations." These values and aspirations help protect individual citizens from excessive governmental intrusion and were foremost in the Framers' minds. By the same token, the proper enforcement of our laws is often dependent upon the introduction of incriminating evidence "independently secured through skillful investigation." Rule of law is no less important to the preservation of a free society than freedom from government intrusion. The interplay between these competing interests has produced much of the Supreme Court's jurisprudence concerning the privilege against self-incrimination. The Court has routinely held that a suspect's oral testimony, usually in the form of a compelled confession, may not be used as evidence against the suspect.

This privilege has not been limited to oral testimony. Most often in the context of white-collar criminal prosecutions, the Supreme Court has held that the act of producing subpoenaed documents that incriminate the producing party may have communicative aspects that warrant Fifth Amendment protection. These white-collar crimes are "often buried and corrosive ventures where the prosecutor and the grand jury have little more than a hunch to direct their attention in the first instance." Therefore, the government typically makes liberal use of the subpoena power in connection with a white-collar crime grand jury investigation." The grand jury has at its disposal the power of the subpoena duces tecum, which summons an individual to produce documents before the grand jury.

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