The idea of production immunity is still new, but in 1886 the U.S. Supreme Court stated that the fabrication of private papers that held incriminating knowledge violated the Fifth Amendment of the constitution. Afterwards, the court changed its mind saying if the subpoenaed papers were willingly fabricated, the documents can’t be grounds for testimonial evidence.
Producing papers due to a subpoena implies a communicative act. Fabricating papers shows:
- The documents are real
- They are authentic
- They are possessed by a witness
Typically, the witness is not allowed to not show documents if the government has valid reason to insist that they do exist, and they have an idea about the papers whereabouts.
The Fifth Amendment does not allow for an interrogations of the assemblies or for documents to be sorted in response to a broader subpoena. In other words, the authorities are not legally capable of issuing a wide subpoena in hopes that they will find a document they expect to exist. The subpoena for documents needs to be detailed and precise. As much as it can, it should make known what the document is and give plausible cause as to why they believe that the documents are real. The subpoena cannot request all the documents in the defendant’s possession.
Producing Corporate Documents
However, the above rules do not apply to corporate documents. Corporations are not given the Fifth Amendment rights against self-incrimination. The person in charge of a corporation’s documents must turn over any document requested at any time. Even if the documents would personally incriminate him or her, the documents officially belong to the corporation. Furthermore, the record’s custodian is not allowed to claim that the seizing of documents violated their personal Fifth Amendment rights. At any time, the state is allowed to collect and examine documents of corporate places.