Bridgegate The First Judicial Decision

The first judicial decision involving Bridgegate was issued by Superior Court Assignment Judge Mary Jacobson. It contains a compelling examination of the Fifth Amendment’s protection against self-incrimination applied to the government’s subpoena for the production of documents. The Fifth Amendment protects an individual from being compelled to provide “testimonial” evidence. Ordinarily this protection does not apply to non-testimonial conduct such as producing documents subpoenaed by a Grand Jury.  The exception discussed in the Bridgegate decision is when the “act of production” in and of itself becomes “testimonial” and therefore afforded Fifth Amendment protection.

The Fifth Amendment protects an individual from being compelled to provide “testimonial” evidence.

The New Jersey Legislative Select Committee on Investigations (“the Committee”) issued subpoenas to William Stepien and Bridget Anne Kelly (“the defendants”) to produce documents and other information.  They refused citing their federal and state constitutional protection against self-incrimination. The Committee initiated a court action to obtain: (i) a declaratory judgment that the defendants failed to comply with the subpoenas without justification; and (ii) a court order compelling the defendants to produce the documents requested in the subpoenas.  The defendants claimed, among other arguments that the nature of the subpoenas required them to testify against themselves by the “act of production”.

This area of law is complex and difficult to apply. The Court noted that the procedural posture of the case was “highly unusual” making the judicial determination more challenging.  It requires a court to balance important individual rights with the investigative needs of government authorities.  The question presented was whether, because of the nature and scope of very broad subpoenas, the defendants would be testifying against themselves if they complied with the production requirements.

Ultimately the court decided that the critical analysis would involve whether the government, at the time the subpoenas were issued, knew with “reasonable particularity” of the existence of the documents sought such that the fact that the defendants’ possession of the documents and things sought could be considered “a foregone conclusion”.  If not, the production would be a “fishing expedition” and therefore “testimonial”.

The Court found that there was little evidence to support the requirement that the government knew of the existence of the items subpoenaed.  The case did not involve a subpoena requiring the defendants to merely surrender items, but rather the subpoenas were so broad that they required the defendants to discriminate among the many documents that might be possessed and then produce only those documents related to the broad subject matter being investigated.  The defendants would be attesting to the authenticity of the documents and communicating that “each produced piece of evidence in fact relates to the lane closures”.  In essence the defendants themselves would be conducting the investigation for the Committee which investigation could lead to criminal liability.  The defendants would be, in effect, “the primary informant against (themselves)”.

The Court’s decision refusing to enforce the subpoenas leaves to the Committee other remedies to conduct its investigation including re-issuing more narrowly tailored subpoenas which would require a non-testimonial response.

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