45. Under what circumstances, if any, may the grand jury compel production of the diary over the suspect's assertion of his Fifth Amendment privilege?

A criminal defendant may be compelled to produce documents that have testimonial significance if immunity is granted to the defendant. There are two kinds of immunity that may be granted. The broader form of immunity is «transactional immunity.» Transactional immunity completely protects the witness from future prosecution for crimes related to his or her testimony. «Use and derivative use» immunity is narrower — it prevents the prosecution only from using the witness's own testimony or any evidence derived from the testimony against the witness. The Supreme Court has held that immunity from the subsequent use of compelled testimony is sufficient to satisfy the privilege against self-incrimination. Kastigar v. United States, 406 U.S. 441 (1972). However, should the prosecutor acquire evidence substantiating the supposed crime, independently of the witness's testimony, the witness may then be prosecuted for the same.

B is correct. A grand jury may compel the production of documents when (and only when) the suspect is given immunity from the act of production, and this answer provides that the suspect would be receiving use and derivative use immunity from the act of production. As such, the subpoena would not violate his right against self-incrimination in this scenario.

A is incorrect. The grand jury may not compel the production of a document that has testimonial significance without granting some kind of immunity to the suspect, lest he be compelled to violate his right against self-incrimination. The issue is not whether the suspect was compelled to fully write a diary, but rather, whether producing the diary itself would have testimonial significance, which requires some form of immunity.

C is incorrect. The prosecution may grant either type of immunity to prevent the constitutional violation — transactional or use and derivative use immunity would suffice. The fact that the prosecution would grant the suspect use and derivative use immunity regarding the production of the diary thus protects him against violating his privilege against self-incrimination.

D is incorrect. A grand jury may issue a subpoena demanding the production of a document that has testimonial significance when the suspect is granted some type of immunity. As stated above, the suspect's right not to incriminate himself may be overcome if he is given immunity. Kastigar v. United States, 406 U.S. 441 (1972).