Bloomberg BNA Criminal Law Reporter Guest Article: Judge’s Refusal to Enforce Broad Subpoenas in ‘BridgeGate’ Case

04/23/2014


On April 9, a New Jersey Superior Court declined to compel compliance with subpoenas issued by a committee of the New Jersey Legislature investigating the so-called ‘‘BridgeGate’’ controversy surrounding the September 2013 closing of George Washington Bridge traffic access lanes in Fort Lee, N.J. In doing so, the court issued a significant decision concerning, among other things, the Fifth Amendment’s ‘‘act of production’’ privilege—a complex and oft misunderstood branch of the Bill of Rights’ prohibition against compelled self-incrimination.

The ability to invoke one’s Fifth Amendment right is a key tool in any criminal defense lawyer’s kit. As the U.S. Supreme Court has established, the right prohibits both compelled testimony and requiring production of documents or other materials in a potential defendant’s possession where the very act of making such production may have qualities of self-incrimination. This act-of- production privilege is not absolute, however, and is subject to limitations and exceptions that the committee argued apply to this case. This ruling thus constitutes an important affirmance of the application of the privilege to most situations in which a potential defendant is asked to supply documents.

Lane Closures Triggered Inquiry
In the wake of the BridgeGate controversy, the New Jersey Legislature created a committee to investigate the lane closures. The committee issued subpoenas duces tecum to Bridget Anne Kelly (Gov. Chris Christie’s former deputy chief of staff) and William Stepien (another former deputy chief of staff of the governor), both of whom were implicated in the lane closures by e-mails previously produced by an official with the Port Authority of New York & New Jersey, David Wildstein. Around the same time, it became publicly known that a parallel criminal investigation was undertaken by the local U.S. Attorney’s Office and that federal law enforcement authorities had attempted to contact both Kelly and Stepien. Kelly and Stepien refused to produce documents, invoking their Fifth Amendment act-ofproduction privilege. The committee sued in New Jersey Superior Court, Mercer County, to compel compliance with the subpoenas.

Excerpted from Bloomberg BNA Criminal Law Reporter, April 23, 2014. To view full article, click the PDF below.

PDF - Judge’s Refusal to Enforce Broad Subpoenas in ‘BridgeGate’ Case.pdf

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