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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Doe, 405
Supreme Judicial Court of Massachusetts, Worcester.
Argued
Decided
Paul W. Shaw,
Judy G. Zeprun, Asst.
Atty. Gen., for Com.
Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and
O'CONNOR, JJ.
NOLAN, Justice.
The
witness appeals from a judgment of a Superior Court judge holding him in civil
contempt for refusing to produce certain items requested in a subpoena duces tecum. A single justice of the
The
witness is the sole stockholder, sole director, president, and treasurer of a
[405
The
witness filed a motion to quash the subpoena duces tecum served upon the corporation. With his motion, the witness filed an
affidavit in which he averred that he was the "Keeper of the Records"
for the corporation. The witness also
stated his belief that "the documents and other materials requested by the
present subpoena contain information which could be used in connection with a
potential criminal prosecution of either myself or [the
corporation]." The witness asserted
that compliance with the subpoena's request for documents would cause him to
incriminate himself in contravention of his rights under art. 12 of the
A Superior
Court judge denied the witness's motion to quash the subpoena. The judge ordered the witness to appear
before the grand jury and to produce the materials requested by the
subpoena. The witness subsequently
appeared before the grand jury and stated that he was appearing pursuant to the
subpoena duces tecum issued
to the keeper of the records for the corporation. In response to both questions and demands for
the materials listed in the subpoena, the witness invoked his privilege against
self‑incrimination pursuant to art. 12.
Following
the witness's purported invocation of the right against self‑incrimination,
the Commonwealth moved to have the witness adjudged in civil contempt. The judge ruled that the witness was indeed
in contempt of court and ordered him incarcerated until he complied with the
demands of the subpoena duces tecum.
(FN2)
[405
[1] [2]
The witness in this case concedes, as he must, that the privilege under the
Fifth Amendment to the United States Constitution does not extend to one in his
position. (FN3) Instead, the witness
argues to this court that art. 12 offers him a privilege broader than that of
the Fifth Amendment. In the past, this
court has recognized that the protections of art. 12 extend beyond the
safeguards afforded by the United States Constitution. See
Attorney Gen. v. Colleton, 387 Mass. 790, 795‑796, 444 N.E.2d 915
(1982). Today we hold that a custodian
of corporate records may invoke his art. 12 right against self‑incrimination
in response to a subpoena for those corporate records
when the act of production itself would be self‑incriminating. Our decision is based on the Massachusetts
State Constitution. See Michigan v. Long, 463 U.S. 1032, 1041,
103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983).
Article 12
states, in part: "No subject shall
... be compelled to accuse, or furnish evidence against himself." At the heart [405 Mass. 679] of this
provision is the right of the subjects of this Commonwealth to be free from
compelled testimonial incrimination‑‑"the forced extraction of
confessions and admissions from the lips of the accused."
Commonwealth v. Brennan, 386 Mass. 772, 780, 438 N.E.2d 60
(1982). Article 12 applies only to
evidence of a testimonial or communicative nature. Id. at 783, 438 N.E.2d 60.
The
Superior Court judge held the witness in contempt because he refused to produce
the items listed in the subpoena duces tecum. This court
has held that the act of production, quite apart from the content of that which
is produced, may itself be communicative. Commonwealth v. Hughes, 380 Mass. 583,
404 N.E.2d 1239, cert. denied, 449 U.S. 900, 101 S.Ct.
269, 66 L.Ed.2d 129 (1980). See United States v. Doe, 465 U.S. 605,
612, 104 S.Ct. 1237, 1242, 79 L.Ed.2d 552
(1984). If the witness should turn over
the materials sought by the Commonwealth, 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. See
Hughes, supra, 380 Mass. at 592, 404 N.E.2d 1239. In addition, the witness would be
authenticating those materials. Id.
All this information is reflective of the knowledge, understanding, and
thoughts of the witness. To that degree
it is testimonial and, therefore, within the ambit of art. 12.
The
Commonwealth contends that we should adopt the rule enunciated in Braswell v. United States, 487 U.S. 99,
108 S.Ct. 2284, 101 L.Ed.2d 98 (1988). In that case the Supreme Court held that a
custodian of corporate records cannot rely upon the Fifth Amendment privilege
against self‑incrimination. Id. 108 S.Ct.
at 2295. The Court reasoned that the
custodian acts only as a representative, and that his act, therefore, is deemed
to be one of the corporation only and not an act of the individual. Id.
We decline to engage in such a
fiction. The act of production is
demanded of the witness and the
possibility of self‑incrimination is inherent in that act. The witness's status as a representative does
not alter the fact that in so far as he is a natural person he is entitled to
the protection of art. 12. It would be
factually unsound to hold that requiring
the witness to furnish corporate records, the act of which would
incriminate him, is not his act. As we said in Emery's Case, 107 Mass. 172, 181 (1871), "[i]f the disclosure ... would be capable of being used
against himself ... such disclosure would be an accusation of himself, within [405 Mass. 680] the meaning of the constitutional provision." The same is true here when the witness's act
of production would incriminate him. His
status as custodian of the corporation's records does not require that he lose
his individual privilege under art. 12.
[3] The
Commonwealth also argues that, by doing business in the corporate form, the
witness waived the right to refuse to produce corporate records. The privilege against self‑incrimination,
being a personal right, may certainly be waived by the person holding that
privilege. See Rogers v. United States, 340 U.S. 367, 373, 71 S.Ct.
438, 442, 95 L.Ed. 344 (1951) ("[d]isclosure of a fact waives the privilege as to
details"). Such a waiver, however,
must be knowing and intelligent. See Blaisdell v.
Commonwealth, 372 Mass. 753, 764, 364 N.E.2d 191 (1977) (mere interposition
of insanity defense is not a waiver of privilege); Jones v. Commonwealth, 327
Mass. 491, 99 N.E.2d 456 (1951) (where individual testified on one matter, art.
12 privilege was not waived as to another matter not relevant to the first
matter). On the record before us, we
have no facts from which to determine whether the witness knowingly
relinquished his personal right against self‑incrimination simply by
becoming the custodian of the corporation's records.
[4] [5]
[6] [7] The Commonwealth has expressed concern that one in the witness's
position can "shield" a corporation and thereby undermine the
government's interest in investigating corporate criminal conduct. As we have said in the Fifth Amendment
context, however, "[w]here the privilege is applicable, the
constitutionally required result is that no balancing of State‑defendant
interests is permissible to facilitate the admittedly difficult burdens of the
prosecution." Blaisdell, supra,
372 Mass. at 761, 364 N.E.2d 191. In
any event, we think that our conclusion will not have a drastic impact on
investigations of corporate wrongdoing.
We hold only that an individual
cannot be held in contempt for refusing to turn over records when the act of
doing so would incrimate him personally. When the
act of production is not incriminating to a witness, that witness has no
privilege. See Matter of Kenney, 399 Mass. 431, 441, 504 N.E.2d 652 (1987) (act
of producing required records not privileged because the act of doing so is not
incriminating). When it is a
"foregone conclusion" that a witness has certain [405 Mass. 681] items,
and the items themselves are not privileged, the witness has no privilege. See
Commonwealth v. Hughes, 380 Mass. 583, 590, 404 N.E.2d 1239 (1980), citing Fisher v. United States, 425 U.S. 391,
411, 96 S.Ct. 1569, 1581, 48 L.Ed.2d 39 (1976). Nontestimonial
evidence can be demanded. Brennan, supra, 386 Mass. at 780‑783,
438 N.E.2d 60 (breathalyzer and field sobriety tests not testimonial). A custodian of corporate records is still
bound by those rules. (FN4) The fact
that a particular record custodian has a valid privilege does not excuse the
corporation from its obligation. (FN5)
Thus, we
hold that the witness cannot be held in contempt for invoking his privilege
under art. 12 in so far as the very act of production demanded of him is
protected. In view of our disposition of
this matter, we need not reach the further issue, urged by the witness, that
the sole stockholder and director of a corporation has a privilege under art.
12 in the corporate records themselves.
Accordingly,
we vacate the judgment of contempt and remand this matter to the Superior Court
for further proceedings in accordance with this opinion.
So ordered.
FN1. We do
not identify the parties to this appeal because grand jury proceedings are
secret.
FN2. The judge did not make any specific
findings as to whether the materials requested in the subpoena duces tecum or the act of
producing those materials would tend to incriminate either the witness or the
corporation. Rather, the judge concluded
that the witness had no right to withhold the information even if it was
incriminating.
FN3. In Fifth Amendment jurisprudence, it is
settled that a corporation cannot resist compelled production of its documents
by claiming that such documents will incriminate the corporation. Hale
v. Henkel, 201 U.S. 43, 74‑75, 26 S.Ct. 370, 378‑379, 50 L.Ed.
652 (1906). While a sole proprietor may
contend that the act of producing his
own unprotected business records is privileged, United States v. Doe, 465 U.S. 605, 612‑614, 104 S.Ct. 1237, 1242‑1243, 79 L.Ed.2d 552 (1984), a
custodian of corporate records may not rely on the privilege even where his act
of production would incriminate him personally. Braswell v. United States,
487 U.S. 99, 108 S.Ct. 2284, 101 L.Ed.2d 98 (1988).
FN4. We do not reach the issue whether a
corporation has art. 12 rights. Although
the witness has argued this point on appeal, he failed to argue it before the
Superior Court. The witness argues that
a statement in his motion to quash‑‑"the materials are subject
to the protection of Art. 12"‑‑was sufficient to raise the
corporation's rights below. We agree
with the Commonwealth, however, that the witness's entire argument in the
Superior Court dealt with the witness's individual right. We shall not address the argument advanced
for the first time on appeal. See Royal Indem. Co.
v. Blakely, 372 Mass. 86, 88, 360 N.E.2d 864 (1977).
FN5. Our decision is not novel. Prior to
Braswell v. United States, 487 U.S. 99, 108 S.Ct.
2284, 101 L.Ed.2d 98 (1988), a number of United States Circuit Courts of Appeal
reached a result under the Fifth Amendment that was similar to the result we
reach today under art. 12. See, e.g., In re Sealed Case, 832 F.2d 1268, 1279
(D.C.Cir.1987); In re Grand Jury No. 86‑3 (Will Roberts
Corp.), 816 F.2d 569, 572‑573 (11th Cir.1987); United States v. Lang, 792
F.2d 1235, 1240‑1241 (4th Cir.), cert. denied, 479 U.S. 985, 107 S.Ct. 574, 93 L.Ed.2d 578 (1986).