As applied to the production of documents, those prepared voluntarily are not protected by the Fifth Amendment unless the act of producing said documents is ‘testimonial and incriminating, because the “act of production” may convey information as to the existence, authenticity and possession of evidence. See Fisher v. U.S., 425 U.S. 391, 410 (1976), and U.S. v. Hubbell, 530 U.S. 27, 36 (2000)

In U.S. v. Doe, 465 U.S. 605, 612-14 (1984), the act of producing voluntary prepared papers was held protected by the Fifth Amendment because the act would necessarily admit existence, defendant’s control, and authenticity of documents.

The court stated, “Lamb’s motion to suppress sought to exclude his statement to the police that “I have a revolver but I found it” as the product of custodial interrogation not preceded by the warnings required by Miranda v. Arizona, 384 U.S. 436, 467-68 (1966). The district court agreed that the statement was unwarned and resulted from custodial interrogation. However, it held that Miranda did not require its exclusion because the “public safety” exception recognized in New York v. Quarles, 467 U.S. 649, 657-60 & n.9 (1984), applied. Although this court has not previously addressed Quarles in a published opinion, we agree.”

“The “public safety” exception permits police officers to “ask a suspect questions without first giving Miranda warnings if they reasonably believe it is ‘necessary to secure their own safety or the safety of the public.’” United States v. Are, 590 F.3d 499, 505 (7th Cir. 2009) (quoting Quarles, 467 U.S. at 659), cert. denied, 562 U.S. ___, 131 S. Ct. 73 (2010).”

“Here, the officers knew that Lamb was a suspect in a homicide involving a gun. They had not secured his apartment or his car, did not know if his apartment was accessible to others, and did not know if he had an accomplice inside the apartment or on the grounds. He walked out with a large black trash bag and carried it through the apartment complex’s public areas. Before he emerged, the officers were waiting on a warrant and had been preparing to enter his apartment, either on a protective sweep or to execute the imminent warrant. According to the officers who testified at the suppression hearing, they asked Lamb about people, dogs, or weapons in the apartment out of concern for the safety of the officers about to go into the apartment and the safety of anyone inside. The district court accepted these concerns as objectively reasonable. It concluded that “the officers have a right for their own safety and the safety of possible other individuals to inquire as to very basic things [such] as who else is in [the] apartment, if anyone? Are there animals or weapons?” and that, under Quarles, the statement, “I have a revolver, but I found it,” was admissible, despite the lack of Miranda warnings.”

The solution is easier in theory than reality: Just don’t say anything.

The Fifth Amendment also gives rise to the act of production privilege; that is, an extension of the privilege to documents that one may be forced to produce. Fisher v. United States, 425 U.S. 391 (1976). Further expanding this protection, in United States v. Hubbell, 530 U.S. 27, 120 S.Ct. 2037 (2000), the Supreme Court of the United States affirmed that the privilege of asserting the Fifth Amendment may also extend to the compelled production of documents, reasoning that the act of producing subpoenaed documents may have a compelled testimonial aspect. Id. at 36, 120 S.Ct. at 2043. “In producing documents in compliance with a summons, the individual “admits that the documents exist, are in his possession or control, and are authentic.” In re Grand Jury Subpoena, 383 F.3d 905, 909 (9th Cir. 2004) (citing Hubbell, 530 U.S. at 36). “These types of admissions implicitly communicate statements of fact that may lead to incriminating evidence.” Id.

A limitation of the of this privilege is that when the existence and location of the summonsed documents are a “foregone conclusion” and “the witness adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the documents, then no Fifth Amendment right is touched because the question is not of testimony but surrender.” Id. at 910 (citing Fisher v. United States, 425 U.S. at 411). To this issue, the Hubbell court started by ruling that because it was not a “foregone conclusion” that the records responsive to a broad subpoena existed or were in Hubbell’s possession, he had validly asserted his Fifth Amendment privilege under the act-of-production doctrine, which had triggered a grant of act-of-production immunity. Hubbell, 530 U.S. 27, 45, 120 S.Ct. 2037.

The (Hubbell) court concluded from the subpoena itself that the prosecutor needed Hubbell’s help to identify potential sources of information and to produce those sources. Id. at 41. According to the court, given the breadth of the description of the documents demanded by the subpoena, the collection and production of the materials demanded was tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions. Id. at 41-42. The court noted that the assembly of hundreds of pages of material to respond to the single demand regarding sources of money was the functional equivalent of preparing an answer to a detailed written interrogatory or a series of oral questions at a discovery deposition. Id. The court found it undeniable that entirely apart from the contents of the materials that Hubbell produced, providing a catalog of existing documents fitting within any of the broadly worded subpoena categories could provide a prosecutor with a “lead to incriminating evidence,” or “a link in the chain of evidence needed to prosecute.” Id. at 42.