DOJ-OGR-00003058.jpg

Case 1:20-cr-00330-PAE Document 204 Filed 04/16/21 Page 124 of 239

element which influences a criminal suspect to make incriminating admissions.” Id. The question
is not whether a witness was encouraged to speak, but whether his “free will,” when he spoke,
“was overborne.” Id. at 188; see also, e.g., United States v. Corbett, 750 F.3d 245, 253 (2d Cir.
2014).

It follows that the Government need not inform a witness of the nature of its investigation,
see United States v. Okwumabua, 828 F.2d 950, 953 (2d Cir. 1987), much less his individual status
in the investigation, see Washington, 431 U.S. at 189 & 190 n.6. The Constitution does not
“require that the police supply a suspect with a flow of information to help him calibrate his self-
interest in deciding whether to speak or stand by his rights.” Colorado v. Spring, 479 U.S. 564,
576-77 (1987) (internal quotation marks omitted); see also, e.g., id. at 577 (there is no requirement
that law enforcement give information that might affect “the wisdom” of speaking). Nor does the
Constitution require that someone be questioned only in the manner most likely to ensure that he
gives the decision whether to speak careful thought. See, e.g., United States v. Roberts, 660 F.3d
149, 157 (2d Cir. 2011) (“the Fifth Amendment does not protect against hard choices” (internal
quotation marks omitted)); United States v. Mullens, 536 F.2d 997, 1000 (2d Cir. 1976) (there is a
difference between “those choices which are physically or psychologically coerced and those
which are merely difficult”).

In short, the Fifth Amendment is only violated by “government misconduct” that is
“coercive.” Colorado v. Connelly, 479 U.S. 157, 163 (1986); see also Oregon v. Elstad, 470 U.S.
298, 312 (1985) (Fifth Amendment prohibits “coercion” effected “by physical violence or other
deliberate means calculated to break the suspect’s will”).

ii. The Fifth Amendment – Act of Production Privilege

The act of production privilege is a form of the Fifth Amendment privilege pertaining to
the production of materials. “[A]n individual may claim an act of production privilege to decline

97

DOJ-OGR-00003058