Protections against Compelled Production of Private Papers in England and the United States

Authors

Kenneth R. Lehman

Abstract

When a government compels a person to produce private papers as evidence, the person may be adversely affected in two ways. First, the papers may be used to incriminate the person who provided them. Second, production of the papers may reveal the writer's intimate thoughts. This Note compares how these interests are protected under British and American law. The author finds that, while compelled production of self-incriminating evidence was not prohibited in the early part of British history, it is now a standard rule of evidence in England that a witness cannot be forced to produce self-incriminating evidence. Conversely, while American rules of criminal procedure adopted pursuant to the fourth and fifth amendments initially protected witnesses from producing most selfincriminating evidence, the courts have recently modified the rules so that the contents of private papers are no longer protected. The author proposes that, in order to protect the interests against self-incrimination and invasion of privacy, probable cause should be required before the production of private papers can be compelled.

Recommended Citation

Kenneth R. Lehman, Protections against Compelled Production of Private Papers in England and the United States, 11 Hastings Int'l & Comp. L. Rev. 349 (1988).
Available at: https://repository.uclawsf.edu/hastings_international_comparative_law_review/vol11/iss2/5