Questions on Fisher

There are tons of things going on in Fisher.  Let’s begin by looking only at the extent of the client’s privilege against self-incrimination, without adding the issue of his lawyer.

1. One of the problems with determining the scope of the privilege against self-incrimination is that no one seems to know what it is for.  Is there a rationale for the privilege against self-incrimination that explains why it should not extend to incriminating evidence of a nontestimonial nature that is provided by the defendant (for example, voice exemplars or blood samples)?  What rationales for the privilege would suggest that a criminal defendant should not be required to assist the government in any way in preparing the case against him, even when his assistance is of a nontestimonial nature?

2. The application of the privilege against self-incrimination to preexisting documents that contain incriminating revelations is very limited  First of all, as Fisher makes clear, documents created by someone other than the criminal defendant that are in the custody of the defendant cannot be refused to be turned over simply because they are self-incriminatory.  Furthermore, documents created by the defendant in the normal course of business are no longer considered to fall under the privilege against self-incrimination.  Is it fair to say that if the government does not request that the defendant create the document, then the privilege does not attach?  Does that mean that the privilege would not extend pre-existing documentary revelations of crime in a diary?

3. Can’t the government in effect request the creation of self-incriminatory documents in advance?  Under the “required records” exception, the government may compel someone engaged in a business to keep records of his business activities and subsequently compel that person to hand over those materials without violating the privilege against self-incrimination.  If that’s so, why is the government violating the privilege against self-incrimination if it compels someone to keep non-business records (such as tax records) and to provide them to the government upon request?

4. A final twist to the problem of pre-existing documents is the fact that providing the documents may have a testimonial aspect.  Why wasn’t the testimonial aspect of turning over documents considered to be a problem in Fisher?  Can you think of a situation where it might be such a problem that the criminal defendant could refuse to turn the documents over on the grounds of the privilege against self-incrimination?

Now let’s consider the effect of a criminal defendant’s turning over documentary materials to his lawyer.

5. Under Fisher, the criminal defendant’s privilege against self-incrimination alone cannot provide the attorney with any excuse for not turning over materials, even if the attorney is understood to be the defendant’s agent.  It’s important to distinguish such a direct argument for the attorney’s not turning over the materials from an argument that appeals to the attorney-client privilege.

6. Next, under Fisher, if pre-existing documents were presented by a client to his attorney in conjunction with the representation, then the attorney-client privilege will attach to the documents, but only if the privilege against self-incrimination would have protected the client from producing them.  Why is it necessary for the attorney-client privilege to be extended to documents in this fashion?  When are materials turned over to an attorney in conjunction with the representation?

7. What if a client has prepared documents solely to assist the lawyer in his defense?  Does the analysis in Fisher apply?

To keep all these issues in mind, consider the following hypotheticals.

8. A client writes a diary of his criminal activities.  He gives the diary to his attorney for safe-keeping while he takes a trip to Europe.  The day he returns from Europe, his attorney is subpoenaed to turn over the diary, which the government found out about through a third party.  May the attorney refuse on the grounds that the diary is protected by the attorney-client privilege?  If the client held the diary, could he refuse to turn it over on the basis of his privilege against self-incrimination?

9. The government suspects that your client is a hitman.  Your client draws up an outline of all his activities as a hitman the day that he realizes that he is under investigation by the police.  He plans to give the outline to you to help you represent him.  The client also has checks from his clients as payment for hits.  The government subpoenas the client, asking for the outline (which it heard about through a third party) and for “any other documents itemizing financial payments to you for your services as a hitman.”  May the client refuse to turn over the outline and/or the checks?  Can the government take away the outline or the checks if they are found during a search pursuant to a valid warrant?