Matter of Grand Jury Proceedings of Guarino

516 A.2d 1063, 104 N.J. 218, 1986 N.J. LEXIS 1238

• Court: Supreme Court of New Jersey
• Decided: October 15, 1986
• Status: Published

Opinions

The opinion of the Court was delivered by

GARIBALDI, J.

This appeal presents the questions whether, and to what extent, the voluntarily-prepared business records of a sole proprietor are privileged against compelled self-incrimination— first, under the Fifth Amendment of the United States Constitution, U.S. Const., Amend. V, and second, under the laws of New Jersey.

I

The relevant facts in this case are undisputed. Since 1959, respondent, Joseph Guarino, has been doing business as a sole proprietor under the name of Green Acres Estates, a real estate concern. In 1984, a state Grand Jury began an investigation of Green Acres Estates. During the course of that investigation, the Grand Jury served Guarino with a subpoena duces tecum. The subpoena directed him to produce the records listed on an attached schedule that read as follows:

For the period January 1, 1970 to present, the following records pertaining to real property sold by Joseph Guarino, doing business as Green Acres Estates.

1) all contracts for the sale of real estate (including conditional land sales contracts) by or on behalf of Joseph Guarino d/b/a Green Acres Estates, seller-grantor, in Burlington County and Cumberland County (regardless of whose signature appears on behalf of the seller);

2) cash receipts journal and general ledger recording all payments made by purchasers/grantees of property from Joseph Guarino d/b/a Green Acres Estates in Cumberland and Burlington Counties (whether payments are complete or ongoing; whether or not the deed has been transferred);

3) all payment coupons or other documentation which reflect and record payments made by purchasers/grantees of property from Green Acres Estates in Burlington and Cumberland Counties.

Guarino moved to quash the subpoena. The trial court ruled that the motion was untimely and ordered Guarino to appear before the Grand Jury.

In June 1984, Guarino did appear. Relying on his Fifth Amendment privilege against self-incrimination, he refused to produce the documents listed in the subpoena. Shortly thereafter upon application by the Attorney General, the trial court entered an order pursuant to N.J.S.A. 2A:81-17.3,¹ compelling Guarino to produce the documents and immunizing him from:

the use of the evidence against him of the act of production of said records in any proceeding or prosecution for a crime or offense, concerning matters arising out of the act of production of the records produced under order of the court pursuant to the provisions of N.J.S.A. 2A:81-17.3 (emphasis added.)

Guarino filed another motion to quash, arguing that use against him of the contents of the subpoenaed documents violated his privilege against self-incrimination under both the Fifth Amendment to the United States Constitution and the laws of New Jersey. Relying on the authority of the United States Supreme Court decision in United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), the trial judge denied the motion. He stated that in the absence of a clear mandate from this Court he was reluctant to decide that the New Jersey privilege against self-incrimination was broader than that provided by the United States Constitution. He ordered Guarino to comply with the subpoena; however, that order was stayed pending appeal.

On March 28, 1985, the Appellate Division issued a per curiam decision reversing the trial court’s order. We granted the State’s petition for certification. 101 N.J. 306 (1985).

II

We first examine whether, and to what extent, the Fifth Amendment privilege against self-incrimination applies to voluntarily-prepared business records of a sole proprietor. The constitutional privilege against self-incrimination is “essentially a personal one, applying only to natural individuals.” United States v. White, 322 U.S. 694, 698, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542, 1546 (1944). “[A]n individual cannot rely upon the privilege to avoid producing the records of a collective entity which are in his possession in a representative capacity, even if these records might incriminate him personally.” Bellis v. United States, 417 U.S. 85, 88, 94 S.Ct. 2179, 2183, 40 L.Ed.2d 678, 683 (1974). Consequently, the privilege cannot be asserted by a collective group (such as a corporation or a union) or by a representative employee or agent of that collective group. See Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911) (corporation and its officers); United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944) (labor union); McPhaul v. United States, 364 U.S. 372, 380, 81 S.Ct. 138, 143, 5 L.Ed.2d 136, 143 (1960) (political organization); Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951) (political party); and Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974) (partnership).

Employing this principle, the Supreme Court in two recent cases, Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976) and United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), has substantially limited the application of the Fifth Amendment privilege to business records, including those possessed by sole proprietors. Since Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886) but prior to Fisher, the Supreme Court in a series of opinions consistently had repeated the axiom that an individual’s private papers were protected by the Fifth Amendment from compelled disclosure. See Fisher, 425 U.S. at 419-20, 96 S.Ct. at 1585-86, 48 L.Ed.2d at 61 (Brennan, J., concurring.) The prevailing rule was that “the Fifth Amendment privilege against compulsory self-incrimination protects an individual from compelled production of his personal papers and effects as well as compelled oral testimony.” Bellis, 417 U.S. at 87, 94 S.Ct. at 2182, 40 L.Ed.2d at 683.² The protection of personal privacy, the fear that private thoughts recorded on paper might become the object of criminal sanctions, was the most prevalent rationale for this rule. And the privilege was viewed quite expansively, applying to the business records of the sole proprietor or sole practitioner as well as to the personal documents containing more intimate information about an individual’s private life. Bellis, 417 U.S. at 87, 94 S.Ct. at 2182, 40 L.Ed.2d at 683; Note, “Organizational Papers and the Privilege Against Self-Incrimination,” 99 Harv.L.Rev. 640 (1986).

In Fisher and then again in Doe, the Court departed from these precedents.³ In Fisher, the Court held that a sole proprietor’s tax records in the possession of his accountant were not protected. Justice White, writing in Fisher for himself and five other Justices, noted that “[s]everal of [the old] express or implicit declarations have not stood the test of time.” Fisher, 425 U.S. at 407, 96 S.Ct. at 1579, 48 L.Ed.2d at 54. He stated that “the prohibition against forcing the production of private papers has long been a rule searching for a rationale consistent with the proscriptions of the Fifth Amendment against compelling a person to give ‘testimony’ that incriminates him.” Id.

No longer constrained by the old rule, the Fisher Court fashioned a new one. The Court focused on the precise words of the Fifth Amendment — “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” Id. at 396, 96 S.Ct. at 1574, 48 L.Ed.2d at 47 (emphasis in the original.) Rather than existing to shield certain private writings from discovery by the Government, the Fifth Amendment “applies only when the accused is compelled to make a testimonial communication that is incriminating.” Id. at 408, 96 S.Ct. at 1579, 48 L.Ed.2d at 54 (emphasis added.) In effect, the focus of the Court shifted from privacy to the process of compulsion. See id. at 400, 99 S.Ct. at 1575-76, 48 L.Ed.2d at 50; In re Grand Jury Empanelled Mar. 19, 1980, 680 F.2d 327, 332 (3d Cir.1982); Note, “The Rights of Criminal Defendants and the Subpoena Duces Tecum: The Aftermath of Fisher v. United States,” 95 Harv.L.Rev. 683, 683 (1982).⁴

Applying the new test to the facts of the Fisher case, the Court concluded that requiring a defendant-taxpayer to produce an accountant’s workpapers in the taxpayer’s possession would not violate the Fifth Amendment, regardless of how incriminating those papers might be to the taxpayer, because “the privilege protects a person only against being incriminated by his own compelled testimonial communications.” 425 U.S. at 409, 96 S.Ct. at 1580, 48 L.Ed.2d at 55. (Emphasis added.)

The accountant’s workpapers were therefore in no sense testimonial communications, according to the Court, because the workpapers were not prepared by the taxpayer. Nor were they compelled communications because they were voluntarily prepared. Id. at 409-10, 96 S.Ct. at 1580-81, 48 L.Ed.2d at 55. The court wrote that:

A subpoena served on a taxpayer requiring him to produce an accountant’s workpapers in his possession without doubt involves substantial compulsion. But it does not compel oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought. Therefore, the Fifth Amendment would not be violated by the fact alone that the papers on their face might incriminate the taxpayer, for the privilege protects a person only against being incriminated by his own compelled testimonial,communications. [citations omitted.] The accountant’s workpapers are not the taxpayer’s. They were not prepared by the taxpayer, and they contain no testimonial declarations by him. Furthermore, as far as this record demonstrates, the preparation of all of the papers sought in these cases was wholly voluntary, and they cannot be said to contain compelled testimonial evidence, either of the taxpayers or of anyone else. (emphases added.)

The Court in Fisher recognized, however, that there were two situations where the act of producing evidence in response to a subpoena could have “communicative aspects of its own, wholly aside from the contents of the papers produced.” Fisher, 425 U.S. at 410, 96 S.Ct. at 1581, 48 L.Ed.2d at 56. First, the act of producing documents in some instances might amount to an admission of the existence of such documents and their possession or control by the taxpayer. Second, the act of production might resemble the act of testimonial self-incrimination if responding to a subpoena would in some sense “authenticate” the documents produced. See United States v. Beattie, 522 F.2d 267, 270 (2d Cir.1975) (Friendly, J.) (“[a] subpoena demanding that an accused produce his own records is ... the equivalent of requiring him to take the stand and admit their genuineness”). Neither of these situations, however, was present in Fisher. Accordingly, the Court reiterated its conclusion that the Fifth Amendment did not prevent the Government from obtaining, through subpoena, an accountant’s workpapers in the possession of a taxpayer or his attorney.

The Court subsequently employed the Fisher analysis in U.S. v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), where the facts were virtually identical to those in this case. The respondent was a sole proprietor. He was served with five subpoenas during the course of a Grand Jury’s investigation into corruption in the awarding of county and municipal contracts. The first two subpoenas demanded that he produce telephone records of several of his companies and all records pertaining to four of his banks. A third subpoena demanded the production of a list of virtually all the business records of one of his companies.⁵

Respondent filed a motion in federal district court seeking to quash the subpoenas. The district court granted the motion, quashing all of the subpoenas except those that sought documents and records required by law to be kept or disclosed to a public agency. The Third Circuit affirmed. In re Grand Jury Empanelled Mar. 19, 1980, 541 F.Supp. 1 (D.N.J.1981), aff'd, 680 F.2d 327 (3d Cir.1982), rev’d sub. nom. U.S. v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984).

In its opinion in Doe, the Supreme Court first stated that Fisher’s rationale applied with equal force to a sole proprietor who prepared his own documents. As in Fisher, the Court found that a subpoena that demands the production of documents does not compel oral testimony. Doe did not contend, said the Court, that he prepared the documents involuntarily or that the subpoena would force him to restate, repeat, or affirm the truth of their contents. The fact that the records were in Doe’s possession, as opposed to his accountant’s, was irrelevant in determining whether the creation of the record was compelled. The Court, therefore reversed the Third Circuit in part and concluded that the contents of the records were not privileged.

The Court, however, continued to draw the distinction that it drew in Fisher between the contents of a document and the act of producing it. Doe, 465 U.S. at 612-13, 104 S.Ct. at 1242, 79 L.Ed.2d at 560. But in Doe, unlike in Fisher, the Court had the explicit findings of the District Court that the act of producing the documents would invoke testimonial self-incrimination. Declining to overturn that finding because it rested on a determination of factual issues that had some support in the record, it affirmed the lower courts insofar as they found the act of production to be privileged. Id. at 614-15, 104 S.Ct. at 1243, 79 L.Ed.2d at 561. The Court recognized that if the government wished to compel production of the documents, it could have sought a grant of use immunity with respect to the potentially incriminating evidence, pursuant to 18 U.S.C. §§ 6002-03. Id. at 614-15, 617-18, 104 S.Ct. at 1243, 1244-45, 79 L.Ed.2d at 561, 563.

Following Doe, it is clear that the contents of business records, whether from a corporation, a partnership, or a sole proprietorship, are no longer privileged under the Fifth Amendment. The documents requested from the respondent in this case were far less extensive than those requested from Doe. The only request made of Guarino, doing business as Green Acres Estates, that was not made of Doe was for real estate contracts and documentation of real estate payments. Given the nature of Guarino’s business, those contracts were clearly business, not personal, records, and they were related to the focus of the Grand Jury’s investigation. Like Doe, Guarino does not contend that he prepared the requested records involuntarily or that the subpoena would force him to restate, repeat, or affirm the truth of the contents. Accordingly, under Doe the contents of respondent’s business records are not protected by the Fifth Amendment privilege against self-incrimination. Furthermore, the prosecutors here, as the Supreme Court suggested in Doe, granted Guarino use immunity for producing the documents. Therefore, the production of the documents did not violate his Fifth Amendment privilege against self-incrimination.

III

We turn now to an examination of whether under independent principles of state law we might extend the privilege against self-incrimination to Guarino, doing business as Green Acres Estates. It is undisputed that State common law may provide greater protection to individual rights than afforded under the United States Constitution. State v. Williams, 93 N.J. 39 (1983); State v. Hunt, 91 N.J. 338, 353 (1982). In the past, we have held that the New Jersey common law privilege against self-incrimination affords greater protection to an individual than that accorded under the federal privilege. See State v. Vinegra, 73 N.J. 484, 490 (1977) (recognizing that the New Jersey privilege as expressed in the “target doctrine seems to afford greater protection than that given by the Fifth Amendment.”); State v. Deatore, 70 N.J. 100, 115-16 (1976) (holding as a matter of state law that a party’s post-arrest silence could not be used to impeach his exculpatory alibi testimony at trial, even if federal law did not require this protection).

The privilege against self-incrimination “has been an integral thread in the fabric of New Jersey common law since our beginnings as a state.” State v. Hartley, 103 N.J. 252, 286 (1986) (citing State v. Fary, 19 N.J. 431, 435 (1955)). See also In re Martin, 90 N.J. 295, 331 (1982); In re Ippolito, 75 N.J. 435, 440 (1978); State v. Vinegra, 73 N.J. 484, 488-89 (1977); State v. Zdanowicz, 69 N.J.L. 619, 622 (E. & A.1903). Although the privilege is expressly incorporated only in our rules of evidence, N.J.S.A. 2A:84A-17 to 84A-19 (Evid.R. 23, 24 and 25),⁶ and is not written into our state constitution, “ ‘the common law doctrine, unaltered by legislation or by law practice is by us deemed to have its full force. In New Jersey, no person can be compelled to be a witness against himself.’ ” State v. Hartley, 103 N.J. at 286 (quoting State v. Zdanowicz, 69 N.J.L. at 622).

Central to our state common-law conception of the privilege against self-incrimination is the notion of personal privacy first embodied in 1886 in Boyd v. United States. While still a member of this Court, Justice Brennan wrote: the “wide acceptance and broad interpretation [of the privilege] rests on the view that compelling a person to convict himself of a crime ... ‘cannot abide the pure atmosphere of political liberty and personal freedom.’ ” In re Pillo, 11 N.J. 8, 15-16 (1952) (citing Boyd v. United States, 116 U.S. at 632, 6 S.Ct. at 533, 29 L.Ed. at 751.) ⁷ In his concurrence in Fisher, Justice Brennan eloquently expressed the essential meaning of the personal privacy doctrine expounded in Boyd:

Expressions are legion in opinions of this Court that the protection of persona] privacy is a central purpose of the privilege against compelled self-incrimination. “[I]t is the invasion of [a person’s] indefensible right of personal security, persona] liberty and private property” that constitutes the essence of the offense” that violates the privilege. Boyd v. United States, supra, at 630, 29 , 6 S.Ct. 524 [, at 532]. The privilege reflects “our respect for the inviolability of the human personality and of the right of each individual “to a private enclave where he may lead a private life. ’ ” Murphy v. Waterfront Comm’n, 378 U.S. 52, 55, 12 L.Ed.2d 678, 84 S.Ct. 1594 [, 1597] (1964). “It respects a private inner sanctum of individual feeling and thought and proscribes state intrusion to extract self-condemnation.” [citations omitted.] “The Fifth Amendment in its Self-Incrimination clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment.” Griswold v. Connecticut, 381 U.S. 479, 484, 14 L.Ed.2d 510, 85 S.Ct. 1678 [, 1681] (1965). See also Katz v. United States, 389 U.S. 347, 350 n. 5, 19 L.Ed.2d 576, 88 S.Ct. 507 [, 510-11 n. 51] (1967). (emphasis added.) [Id., 425 U.S. at 416, 96 S.Ct. at 1583-84, 48 L.Ed.2d at 59 (Brennan, J., concurring).]

Similarly, in In re Addonizio, 53 N.J. 107 (1968), this Court recognized that an individual’s personal financial records, such as personal checking account statements and lists of personal assets including securities, mutual funds and real and personal property were privileged.

Addonizio predated both the Fisher and Doe decisions. Since the Fisher and Doe decisions, the issue of whether under New Jersey law the privilege of self-incrimination extends to the non-required business records of a sole proprietor has not been before this court.⁸ Thus, this case is one of first impression for us.

We affirm our belief in the Boyd doctrine and hold that the New Jersey common law privilege against self-incrimination protects the individual’s right “to a private enclave where he may lead a private life.” Murphy v. Waterfront Comm’n, 378 U.S. 52, 55, 84 S.Ct. 1594, 1597, 12 L.Ed.2d 678, 681 (1964). To determine whether the evidence sought by the government lies within that sphere of personal privacy a court must look to the “nature of the evidence.” Couch v. United States, 409 U.S. 322, 350, 93 S.Ct. 611, 626, 34 L.Ed.2d 548, 566 (1973) (Marshall, J., dissenting). In the case of documents, therefore, a court must look to their contents, not to the testimonial complusion involved in the act of producing them, as the Supreme Court has done in Fisher and Doe. Neither Fisher nor Doe recognize the fundamental privacy principles underlying the New Jersey common-law privilege against self-incrimination. Thus, in defining the scope of our common-law privilege, we decline to follow the Court’s rationale for its Doe decision.

IV

Nevertheless, as a matter of New Jersey common law, we agree with the result in Fisher and Doe. The subpoenaed documents in issue are the business records of Guarino, doing business as Green Acres Estates, a real estate concern. The business records of a sole proprietor do not lie within that special zone of privacy that forms the core of the documents protected by Boyd and its progeny, and that are protected by the New Jersey privilege against self-incrimination.⁹

It has long been recognized that business records of entities may be subpoenaed and that even the personal business records of an individual which have been disclosed to or were within the knowledge of a third party generally are not privileged. Fisher v. United States, supra, 425 U.S. at 424-25, 96 S.Ct. at 1587-88, 48 L.Ed.2d at 64. Such records do not contain “the requisite element of privacy or confidentiality essential for the privilege to attach.” Bellis v. United States, supra, 417 U.S. , 94 S.Ct. at 2185, 40 L.Ed.2d at 686. The business records of a corporation, partnership or a sole proprietor are not an extension of the more intimate aspects of one’s life.

As Justice Marshall stated in Couch v. United States:

Diaries and personal letters that record only their author’s personal thoughts lie at the heart of our sense of privacy. In contrast, I see no bar in the Fourth or Fifth Amendments to the seizure of a letter from one conspirator to another directing the recipient to take steps that further the conspiracy. Business records like those sought in this case lie between those cases. We are not so outraged by the intrusion on privacy that accompanies the seizure of these records as we are by the seizure of a diary, yet the records could not easily be called “instrumentalities” of tax evasion, particularly if they are accurate. [Couch v. United States, 409 U.S. at 350, 93 S.Ct. at 626, 34 L.Ed.2d at 566 (Marshall, J., dissenting).]

Recently, other courts have recognized the apparent anomaly of protecting the business records of a sole proprietor but not those of a corporation, partnership or other artificial entity.¹⁰ See Butcher v. Bailey, 753 F.2d 465, 469 (6th Cir.1985); United States v. Schlansky, 709 F.2d 1079, 1083 (6th Cir.1983); In re Grand Jury Proceedings (United States), 626 F.2d 1051, 1054 n. 2 (1st Cir.1980). These courts concluded that under the Boyd privacy rationale the contents of personal business records of sole proprietors do not have the same degree of privacy, as non-business personal papers, such as personal diaries or drafts of letters; and hence, they are not entitled to the same privacy considerations. Persuasive scholarship also supports this view and has concluded that

[t]he corporate or individual nature of the defendant and the legal relationships among the corporation, its agents, and the documents should be irrelevant to the question of privilege when the amendment is applied to business documents. Such documents should be unprivileged no matter who asserts the claim. “Developments in the Law-Corporate Crime: Regulating Corporate Behavior Through Criminal Sanctions,” 92 Harv.L.Rev. 1227, 1286 (1979).¹¹

Under this reasoning, the withdrawal of the privilege to all business records is totally consistent with Boyd, which still retains its full vigor as to those “privacies of life” which are beyond the pale of legitimate government intrusion.

The subpoenaed documents here illustrate that the business records of a sole proprietor are simply not private. They do not contain the requisite element of privacy or confidentiality essential to be privileged. The purpose of business records is frequently to record transactions with second and third parties. In today’s highly computerized, commercialized and regulated world, there is little expectation of privacy for such records that touch so little on the intimate aspects of one’s personal life. This is particularly true of the records requested here: contracts of sale, cash receipts, journals and general ledgers. They document payments made by purchasers of property from Guarino doing business as Green Acres Estates. Many of these documents of sale are presumably reviewed by the purchasers, their attorneys and their accountants, then used in preparing the purchaser’s tax returns and possibly filed at county recording offices. Normally, such documents are disclosed to a significant number of individuals, to an extent totally inconsistent with any claim of privacy.

Moreover, we do not perceive any reason why the records of a sole proprietor kept in the ordinary course of business are. entitled to any greater protection than the business records of a partnership or corporation. Sole proprietors may operate large, substantial business enterprises, in many instances more extensive than small one-person corporations or two-person partnerships. Such records are indistinguishable from business records of other business entities and would enjoy protection only because of the form of the business organization chosen by their founders. In no way is the privilege related to the contents of the documents. To continue to distinguish between the business records of a sole proprietorship and other business entities not only would be inequitable but might in fact offer the knowledgeable white-collar criminal a means to avoid criminal prosecution.

Accordingly, under the New Jersey common law privilege against self-incrimination the business records of a sole proprietor do not have the requisite elements of personal privacy for the privilege to attach provided that the production of such records is itself both nontestimonial and non-incriminating in character.¹²

We reverse the judgment of the Appellate Division and reinstate the Trial Court’s Order.

1 N.J.S.A. 2A:81-17.3, in relevant part, provides:

In any criminal proceeding before a court or grand jury, if a person refuses to answer a question or produce evidence of any other kind on the ground that he may be incriminated thereby and if the Attorney General or the county prosecutor with the approval of the Attorney General, in writing, requests the court to order that person to answer the question or produce the evidence, the court shall so order and that person shall comply with the order. After complying and if but for this section, he would have been privileged to withhold the answer given or the evidence produced by him, such testimony or evidence, or any information directly or indirectly derived from such testimony or evidence, may not be used against the person in any proceeding or prosecution for a crime or offense concerning which he gave answer or produced evidence under court order. [A. 1968, c. 195, § 1, eff. July 19, 1968. Amended by A. 1973, c. 112, § 1, eff. May 7, 1973.]

2 This principle stems from English common law. See In re Grand Jury Proceedings (Johanson), 632 F.2d 1033, 1043-44 (3d Cir.1980). The U.S. Supreme Court first recognized the privilege in 1886 in Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746, 751 (1886): "Any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of a crime'' violates the Fifth Amendment. Id.

3 A predecessor of Fisher was the Court’s decision in Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973). In Couch, the Court held that Fifth Amendment rights of a sole proprietress were not violated by the enforcement of a documentary summons issued by the Internal Revenue Service to her accountant requiring production of the taxpayer's own records in the accountant’s possession. The Court did so on the ground that no "Fifth Amendment claim can prevail where, as in this case, there exists no legitimate expectation of privacy and no semblance of governmental compulsion against the person of the accused." 409 U.S. at 336, 93 S.Ct. at 619-20, 34 L.Ed.2d at 558.

4 The Court stated that:

The Framers addressed the subject of personal privacy directly in the Fourth Amendment. They struck a balance so that when the State’s reason to believe incriminating evidence will be found becomes sufficiently great, invasion of privacy becomes justified and a warrant to search and seize will issue. They did not seek in still another Amendment — the Fifth — to achieve a general protection of privacy but to deal with the more specific issue of compelled self-incrimination. [Fisher, 425 U.S. at 400, 96 S.Ct. at 1576, 48 L.Ed.2d at 50.]

5 The categories of records sought by the third subpoena were: 1) general ledgers; 2) general journals; 3) cash disbursement journals; 4) petty cash books and vouchers; 5) purchase journals; 6) vouchers; 7) paid bills; 8) invoices; 9) cash receipts journals; 10) billings; 11) bank statements; 12) cancelled checks and check stubs; 13) payroll records; 14) contracts and copies of contracts, including all retainer agreements; 15) financial statements; 16) bank deposit tickets; 17) retained copies of partnership income tax returns; 18) retained copies of payroll tax returns; 19) accounts payable ledger; 20) accounts receivable ledger; 21) telephone company statement of calls and telegrams, and all telephone toll slips; 22) records of all escrow, trust, or fiduciary accounts maintained on behalf of clients; 23) safe deposit box records; 24) records of all purchases and sales of all stock and bonds; 25) names and home addresses of all partners, associates, and employees; 26) W-2 forms of each partner, associate, and employee; 27) workpapers; and 28) copies of tax returns.

6 The basic privilege under New Jersey law is defined in N.J.S.A. 2A:84A-17(1), Evidence Rule 23, as follows: “(1) Every person has in any criminal action in which he is an accused a right not to be called as a witness and not to testify.” The remaining sections of N.J.S.A. 2A:84A-17 set forth the rules of evidence concerning (2) the privilege with respect to the testimony of a spouse and (3) the lack of a privilege regarding non-testimonial matters (i.e. body examinations). N.J.S.A. 2A:84A-18 and 19 defines the right against self-incrimination and sets forth specific limitations on that right.

7 See also In re Hague, 105 N.J.Eq. 134, 141 (1929) in which the Chancery Court, wrote intrusion into and compulsory exposure of one’s private affairs and papers ... is contrary to the principles of free government and is abhorrent to the instincts of Englishmen and Americans. Id. at 141 (emphasis added). The court added, "Of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books and papers from the inspection and scrutiny of others, without the enjoyment of this right, all others would lose half their value." Id. (emphasis added).

8 In State v. Stroger, 97 N.J. 391 (1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 971, 83 L.Ed.2d 974, the respondent was under investigation by the Division of Ethics and Professional Services (DEPS). He complied with DEP’s request to produce his bookkeeping records that Rule 1:21-6 required him to keep. DEPS turned these records over to the prosecutor’s office, which used them against Stroger in prosecuting embezzlement charges. Stroger appealed the denial of his motion to suppress the documents. We affirmed the denial of that motion, relying on the required-records exception to the Fifth Amendment privilege.

9 If Guarino had contended that any part of these records invoked concerns of personal privacy, e.g. personal comments, telephone numbers, or the like that would warrant protection, the result might be different. No such issue has been raised. Cf. Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955 (3d Cir.1984) ("warrant authorizing virtually a wholesale search and seizure of business records" of a law firm in which one of its attorneys was the target of a criminal investigation was overbroad and constitutionally infirm).

10 Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), supports this conclusion. In that case, the Court, in upholding the seizure of the personal business records of an attorney under a warrant, repeatedly emphasized that the documents were business records.

11 "DeveIopments in the Law-Corporate Crime: Regulating Corporate Behavior Through Criminal Sanctions", supra, 92 Harv.L.Rev. at 1283 further notes that "the dubious asymmetry” between the Fifth Amendment status of a corporate official and that of an individual businessman "was supported by unpersuasive property and agency principles. In Bellis the Court seemed to be seeking to eliminate the asymmetry by declaring all business enterprises collective entities and their members and employees mere agents. These problems could have been avoided if the Court had inquired whether the privilege applies to business documents at all, regardless of whether individual or entity created or possesses them, rather than asking whether a person asserting the privilege over commercial documents is entitled to do so.”

12 Under Fisher and Doe the act of producing business records of a sole proprietor to the extent that it additionally possesses "testimonial aspects and incriminating effects" is entitled to protection under the Fifth Amendment privilege against self-incrimination. United States v. Doe, supra, 465 U.S. at 613-14, 104 S.Ct. at 1242-43, 79 L.Ed.2d at 560-61. In this case, Guarino was given immunity under N.J.S.A. 2A:81-17.3 for the act of producing the documents. Since we hold that the contents of the subpoenaed business records are not incriminatory evidence that Guarino was privileged to withhold, N.J.S.A. 2A:81-17.3 is not applicable with respect to the contents of the records.