It’s got nothing to do with being in government. It’s the guarantee against self-incrimination. Countries based on the English common law system, including the US and Canada, operate on the principle that the state cannot compel an individual in a criminal trial to be a witness against themselves.
Any person who is potentially facing criminal charges can assert that right to silence.
The court/tribunal before which you are summoned can review your claim that your testimony might be self-incriminatory, and can disallow it. And that’s a decision which can itself be the subject of appeal and further litigation, etc.
And, in general, you don’t not appear (if summoned to give oral evidence, that is). You turn up but decline to answer the questions put to you, on the grounds that the answer might incriminate you. In the current case I think Flynn has been summoned to produce documents, and has replied that he will not produce them.
As I understand it, the subpoena issued to Flynn didn’t required him to show up at a specified time and place in order to testify. It ordered him to produce specified documents/specified classes of documents by a specified date.
I think “Flynn declined the subpoena” is journalistic shorthand for “Flynn declined [to comply with] the subpoena”. He didn’t produce the documents by the stated date. Instead, he sent a letter saying why he wasn’t producing the documents.
There is generally no Fifth Amendment protection against being compelled to produce documents. Documents are not testimonial. (There is a nuance there: if the mere fact that you possess the documents conveys some incriminating fact, then there is a possible Fifth Amendment claim there. Details on request.)
But there are other reasons beyond the Fifth Amendment to refuse to produce documents. As examples, you can object that the scope of the subpoena creates an overly broad or burdensome request. (“This subpoena asks me to provide a copy of every letter I have ever received since I turned 18.”) You can object on the grounds that the documents are privileged in some way. (“This subpoena asks me to turn over any notes I made after meeting with my lawyer concerning his defense of me on criminal charges.”)
In general, you cannot ignore the subpoena. You must make your objection known. Ultimately the judge will rule on your claim; the court may conduct a hearing to explore the factual basis for the claim first.
All of the above relates to a subpoena duces tecum, a subpoena for the production of evidence, as distinct from a subpoena ad testificandum, an order to appear and testify. That latter obviously does involve testimony and is subject to Fifth Amendment protection.
I’m speculating here. But suppose you were accused of stealing classified documents. And you were issued a subpoena telling you to submit any work-related documents you had in your possession. If you complied with the subpoena and turned in what were in fact the stolen classified documents this would be evidence that incriminated you in their theft. So complying with the subpoena would effectively be ordering you to testify against yourself.
But how does the court decide whether to believe the person saying, ‘I won’t it would incriminate me.’, I wonder?
I mean, if I say how it would do so, in court, hasn’t the damage been done anyway?
And if I just hint at it, without damaging myself, how is that not widely abused? Seems like it would be easily accomplished. Could not any defendent say, when asked, “Your honour, I was in company with persons who’s liberty could be lost should I reveal our connection!” How is anyone going to prove or disprove that? Or do they even have to?
Generally speaking, the potential for self-incrimination will be self-evident from the subject matter of the legal proceeding which has produced the subpoena. Thus, in this case, Gen. Flynn’s potential for self-incrimination is relatively clear from the fact that the subject matter the Senate is investigating is over-lapping with a criminal investigation by the FBI (and now a special counsel) into violation of various laws regarding interactions by members of the government with foreign powers, etc. Further, the person subpoenaed doesn’t have to assert that their testimony WILL incriminate them. They merely have to assert correctly that the requested testimony has the potential to incriminate them, depending upon how they answer.
Of course, you have to convince a judge that your claim is valid. Relatively vague expressions of potentially incriminating yourself won’t be allowed. As for your proposed defendant’s claim, that’s irrelevant; it’s self-incrimination that’s at issue. The “liberty” of others would be irrelevant.
OK. There are two somewhat related issues that can come into play.
The first is illustrated by a subpoena that requires you to provide the combination for a safe. The government can do this (assuming they have good reason to get into the safe) because the combination is intended to open the safe. But suppose the government orders you to open the safe, and then at trial argues that you must have known about the bad stuff that was in the safe, since after all you were the guy with the combination.
This, they cannot do. They can demand that you open the safe, but they cannot then use your knowledge of the combination to show that you were guilty. They can use what’s in the safe, of course, and they can use other evidence that shows you controlled the safe to help the jury infer you knew what was in it. But they cannot compel you to reveal a combination and the use the fact that you knew the combination against you.
In a related way, they cannot make very broad requests for document production, force you to comply by granting immunity, and then prosecute you for details concerning a crime they had no idea about before they began (and was not mentioned in the grant of immunity because they didn’t know it existed).
Note that you can’t game the system by slipping in non-responsive documents; this limitation applies to documents that are responsive to the subpoena. So the prosecutor has to limit his requests, and describe with some particularity, the documents he seeks to avoid inadvertent grants of immunity.
And as usual, this is use immunity and derivative use immunity. The government can still prosecute, but they now bear the steep burden of affirmatively demonstrating that all the evidence was independently derived.
Really? The government can tell you to open a safe? That’s pretty close to denuding testimony, which would be covered by the fifth. They can demand you produce documents, if they know (have reason to believe?) you have them, but not to divulge data from your mind. They can demand you produce a key. But not a password AFAIK, and a combination would be like a password.
The whole passwords thing legality is up in the air, but the fact that law enforcement have “hundreds of phones” waiting to be unlocked more likely suggests they can’t simply force you to divulge a combination.
However, usually, the combination is just icing on the cake, and they have enough of a case without the safe contents.
The court can require you to divulge knowledge. The only knowledge that can’t require you to divulge is information that would incriminate you. The information that you know the combination to a safe would not generally incriminate you in any way so it’s not protected. As Bricker noted, even if there were unusual circumstances where the information would incriminate you, it would be ruled inadmissable.
How does that relate to the case where there was a woman (Colorado, IIRC) who refused to divulge the password to decode her secret files that would incriminate her (according to her conversation with her husband, recorded on the prison phone)? Or the fellow who refused to provide the border patrol with the password to his laptop so they could get the kiddie porn that was on it (that they saw once before the computer was shut down)?
It seems to skirt the fine line between “produce what we know you have” and “testify that you have incriminating documents”. I gather the fact that the authorities knew what they were looking for made a difference. But then, do they have to know (or have reasonable grounds to know) that the safe contains illicit materials, or is it a matter of “we get to search everything in the house/office”?
I returned from vacation earlier this year to find a subpoena in my work mailbox (it was for something I witnessed at work). The date I was to appear had come and gone.
It took several calls over several days to get the District Attorney on the phone. When I finally did, I explained my situation. His response: “Don’t worry about it, no one shows up for those things”.