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
of the defendant cannot be refused to be turned over simply because
are self-incriminatory. Furthermore, documents created by the
in the normal course of business are no longer considered to fall under
privilege against self-incrimination. Is it fair to say that if
government does not request that the defendant create the document,
the privilege does not attach? Does that mean that the privilege
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?