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NCJ Number: 51240 Find in a Library
Title: APPROACHES TO PROSECUTION AND CONTROL - OBTAINING AND USING BUSINESS RECORDS
Author(s): S C UNDERWOOD
Date Published: Unknown
Page Count: 5
Sponsoring Agency: National Institute of Justice/
Rockville, MD 20849
Sale Source: National Institute of Justice/
NCJRS paper reproduction
Box 6000, Dept F
Rockville, MD 20849
United States of America
Document: PDF
Language: English
Country: United States of America
Annotation: JUDICIAL DECISIONS AFFECTING THE EVOLUTION OF THE LEGAL STRUCTURE ASSOCIATED WITH OBTAINING BUSINESS RECORDS ARE DISCUSSED, AND PROCEDURES FOR USING BUSINESS RECORDS IN CASE DEVELOPMENT ARE DESCRIBED.
Abstract: THE SEARCH WARRANT AND THE SUBPOENA ARE TWO METHODS FOR OBTAINING FINANCIAL RECORDS CRUCIAL IN THE DEVELOPMENT OF ASSOCIATED CRIMINAL CASES. THE SEARCH WARRANT IS FREQUENTLY IMPRACTICAL BECAUSE 'PROBABLE CAUSE' OFTEN DOES NOT EXIST IN FINANCIAL CRIME CASES UNTIL RECORDS HAVE BEEN EXAMINED. THE ISSUING OF A SUBPOENA IS A COMPLEX MATTER BECAUSE THE PROSCRIPTION AGAINST SELF-INCRIMINATION EXTENDS TO BOTH INDIVIDUAL TESTIMONY AND PRIVATE PAPERS. THE CONVERGENCE THEORY, WHICH ORIGINATED WITH THE U.S SUPREME COURT CASE OF BOYD VERSUS UNITED STATES, 116 U.S. 616 (1886), HOLDS THAT BOTH SUBPOENAS AND SEARCH WARRANTS RELATIVE TO PRIVATE PAPERS INVOLVE SUFFICIENT COMPULSION TO INVOKE THE FIFTH AMENDMENT PROTECTION. IN HALE VERSUS HENKEL, 201 U.S 43 (1905), THE COURT HELD, HOWEVER, THAT THE FIFTH AMENDMENT PRIVILEGE ONLY APPLIED TO INDIVIDUALS AND NOT TO CORPORATIONS. THUS, CORPORATION RECORDS BECAME AVAILABLE THROUGH SEARCH WARRANTS AND SUBPOENAS. IN BELLIS VERSUS UNITED STATES 417 U.S. 85 (1974), THE SUPREME COURT HELD THAT BUSINESS RECORDS OF ANY ORGANIZATION ARE NOT SUBJECT TO FIFTH AMENDMENT PRIVILEGES. IN THE AREA OF OBTAINING RECORDS OF PRIVATE PERSONS, THE USE OF THE SEARCH WARRANT AND SUBPOENA IS EVEN MORE CONFUSING. JUDICIAL DECISIONS APPARENTLY PERMIT THE USE OF SEARCH WARRANTS (ASSUMING PROBABLE CAUSE) TO OBTAIN RECORDS, PROVIDING NO COMPULSION IS USED TO OBTAIN SUCH RECORDS. THE USE OF SUBPOENAS ON THE OTHER HAND IS STILL AN UNCERTAIN AREA, PARTICULARLY REGARDING BANK RECORDS, SINCE COMPULSION AND THUS A VIOLATION OF SELF-INCRIMINATION PRIVILEGES IS APPARENTLY INVOLVED. PROCEDURES FOR OBTAINING RECORDS AND USING THEM AT TRIAL ARE SPECIFIED. (RCB)
Index Term(s): Criminal investigation; Evidence collection; Judicial decisions; Larceny/Theft; Prosecution; Records; Search warrants; Subpoenas
Note: SPEECH DELIVERED AT A SEMINAR ON COMBATTING ORGANIZED CRIME, APRIL 1978
To cite this abstract, use the following link:
http://www.ncjrs.gov/App/publications/abstract.aspx?ID=51240

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