Matter of Grand Jury Proceedings of Guarino

HANDLER, J.,

dissenting.

This case calls upon the Court to delineate the scope of protection to be accorded an individual required to produce personal business records under the mandate of a documentary subpoena. The issue arises in the context of a grand jury investigation into the business transactions of Green Acres *236 Estates, a sole proprietorship owned by respondent Joseph Guarino. During the course of this grand jury investigation, a subpoena duces tecum was served upon Guarino directing that he individually produce various documents related to all real estate sales in Burlington and Cumberland Counties, from “January 1, 1970 to the present,” made by him while doing business as Green Acres Estates. Guarino, upon appearing before the grand jury in June 1984, asserted the privilege against self-incrimination as justification for his refusal to produce the subpoenaed documents.

Responding to Guarino’s exercise of his privilege against self-incrimination, the State petitioned the trial court for an order, pursuant to N.J.S.A. 2A:81-17.3, immunizing the production of the subpoenaed records. The trial court granted the State’s application, entering an order which compelled the production of the documents, but immunized “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____” Ante at 222. Thereafter Guarino, seemingly concerned about the prosecutorial use of any contents of his documents, filed a motion to quash the subpoena as violative of his privilege against self-incrimination under both federal and state law. This motion was denied on the authority of the Supreme Court’s opinion in United States v. Doe, 465 U.S. 605 , 104 S.Ct. 1237 , 79 L.Ed.2d 552 (1984). See also Fisher v. United States, 425 U.S. 391 , 96 S.Ct. 1569 , 48 L.Ed.2d 39 (1976).

The majority accepts United States v. Doe, supra, as binding decisional authority governing the extent of protection available under the Fifth Amendment, but rejects application of the new federal standard to the settled and provident state common-law privilege. In the process, the Court underscores correctly the significance of Boyd v. United States, 116 U.S. 616 , 6 S.Ct. 524 , 29 L.Ed. 746 (1886), observing that Boyd and its progeny represent “a series of opinions [which] consistently ... repeated the axiom that an individual’s private papers were *237 protected by the Fifth Amendment from compelled disclosure.” Ante at 223. While purporting to reaffirm the Boyd-inspired concern for privacy underpinning this state’s common-law privilege, however, the majority instead re-defines the right, ignoring the thrust of the pre-Fisher case law, thereby, in effect, attenuating the privilege. The United States Supreme Court abandoned Boyd and its progeny because it was unable both to withdraw the privilege from the business records of sole proprietors and to retain the privacy rationale supporting the privilege; the majority’s attempt to do both, to circumscribe the privilege while retaining its privacy rationale, succeeds only in corrupting the rationale while diluting the privilege. The majority, in short, is partly right. This state’s privilege against self-incrimination should not be vitiated by adopting the dubious federal distinction between content and production; nor, however, should the privilege be attenuated by redefining, as the majority does, the scope of protected privacy.

I concur in the Court’s conclusion with respect to the scope and effect of the Fifth Amendment. In my opinion, however, the New Jersey common-law privilege against self-incrimination is strongly protective of privacy interests and serves to prohibit both the compelled production as well as the disclosure of the contents of personal business records of an individual. In addition, New Jersey’s statutory privilege, N.J.S.A. 2A:81-17.3, which furnishes protections in the form of prosecutorial immunity against the compelled disclosure of incriminating evidence, is broadly intended to maximize the privacy interests inherent in the privilege; it extends to all incriminatory contents of documents derived as a result of state-compelled production. For these reasons I dissent from the opinion of the Court.

I.

I am constrained to agree with the majority that under federal constitutional decisional law, the Fifth Amendment furnishes no protection to Guarino against the enforcement of the *238 subpoena duces tecum, in terms of compelling the disclosure of the contents of the records that the subpoena requires him to produce. Nevertheless, the historical analysis and evolution of federal Fifth Amendment doctrine remains important in shedding light upon the proper interpretation of the State’s common-law privilege against self-incrimination, which has generally paralleled the development of the federal constitutional privilege.

Any historical review of these common-law and constitutional principles, as related to the subpoenaed production of documents, should appropriately commence with the seminal case of Boyd v. United States, supra, 116 U.S. 616 , 6 S.Ct. 524 , 29 L.Ed. 746 . There the Court afforded broad protection to two partners who objected to a district court order directing that they produce a partnership business invoice. Upon reviewing the propriety of the district court’s order, the Supreme Court found violations of both the Fourth and Fifth Amendments. The Court first held that “a compulsory production of a man’s private papers to establish a criminal charge against him,” id. at 622, 6 S.Ct. at 528 , 29 L.Ed. at 748 , violates the Fourth Amendment proscription against unreasonable searches and seizures. The Court also found a coexisting Fifth Amendment protection grounded in principles of privacy.

It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offense; it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden’s judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but 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 crime ... is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other. [Id. at 630, 6 S.Ct. at 532 , 29 L.Ed. at 751 .]

The Supreme Court held that “a compulsory production of the private books and papers of the owners of goods sought to be forfeited ... is compelling him to be a witness against himself, *239 within the meaning of the Fifth Amendment to the Constitution.” Id. at 634-35 , 6 S.Ct. at 534 , 29 L.Ed. at 752 .

The Supreme Court sedulously adhered to the fundamental privacy rationale of Boyd in a long line of subsequent decisions through the mid-1970s, therein confirming the significant role of individual privacy in Fifth Amendment jurisprudence. Commensurate with this primary focus on privacy concerns, it denied the applicability of the privilege to persons who merely hold subpoenaed documents in a representative capacity. E.g. Wilson v. United States, 221 U.S. 361 , 31 S.Ct. 538 , 55 L.Ed. 771 (1911) (when subpoena directed to corporation, privilege does not apply to corporate records which should be treated as public records and corporate officers as the custodians of those records); Dreier v. United States, 221 U.S. 394 , 31 S. Ct. 550 , 55 L.Ed. 784 (1911) (same as Wilson when subpoena directed to individual corporate officer); United States v. White, 322 U.S. 694 , 64 S.Ct. 1248 , 88 L.Ed. 1542 (1944) (same as Wilson when subpoena directed to individual as record custodian of unincorporated organizations).

The long-standing privacy principles of Boyd were further reinforced in Couch v. United States, 409 U.S. 322 , 93 S.Ct. 611 , 34 L.Ed. 2d 548 (1973). The Court there stressed that encompassed within the Fifth Amendment is an unceasing commitment to the protection of privacy; it “ ‘respects a private inner sanctum of individual feeling and thought’ — an inner sanctum which necessarily includes an individual’s papers and effects to the extent that the privilege bars their compulsory production and authentication — and ‘proscribes state intrusion to extract self-condemnation.’ ” Id. at 327 , 93 S.Ct. 615 , 34 L.Ed.2d at 552 . Although reaffirming its adherence to the privacy concerns within the federal privilege, the Court was nevertheless constrained, on the facts, to conclude that the taxpayer had forfeited any legitimate expectation of privacy in her tax records because she had turned the papers over to her accountant. Accordingly, consistent with the exception from the privacy-based privilege for various organizational doc *240 uments held in representative capacity, production of the taxpayer’s no longer “private” records was deemed to be unprivileged.

In Bellis v. United States, supra, 417 U.S. 85 , 94 S.Ct. 2179 , 40 L.Ed.2d 678 , the Supreme Court continued to draw sharp distinctions directed toward preservation of privacy interests under the Fifth Amendment, this time focusing on the distinction between a sole proprietor’s business records and those of a three-man partnership. Underscoring the protection furnished by the privilege over personal, private and individual interests, the Court uncategorically extended the privilege “to the business records of the sole proprietor or sole practitioner as well as to personal documents containing more intimate information about the individual’s private life,” id. at 87-88, 94 S.Ct. at 2182-83 , 40 L.Ed. 2d at 683 , on the basis of its perception that such a business entity does not have “an independent identity” apart from its individual owner. Id. at 92-93 , 94 S.Ct. at 2185 , 40 L.Ed.2d at 686-87 . As acknowledged by the majority today, the confirmation in Bellis of Boyd’s privacy values reflected the “prevailing rule,” ante at 239, namely, that “the Fifth Amendment privilege against compulsory self-incrimination protects an individual from compelled production of his personal papers as well as compelled oral testimony.” Id. at 87 , 94 S.Ct. at 2182 , 40 L.Ed.2d at 683 ; Comisky and Comisky, “Supreme Court in Doe Limits Fifth Amendment Protection But Uncertainty Remains,” 61 J.Tax’n, 66 (1984). This, without the slightest hint that in some esoteric way the compelled production of private personal documents could, or should, be separated from the subsequent disclosure of their contents.

Thus, until 1976, the Supreme Court consistently and repeatedly recognized the privacy interest of the Boyd standard as a critical factor in determining whether individuals could withhold the production, as well as the contents, of incriminating personal documents. However, as the ink was just beginning to dry on its latest reaffirmation of the privacy interests encompassed by the Fifth Amendment, the Supreme Court, in *241 Fisher v. United States, supra, 425 U.S. 391 , 96 S.Ct. 1569 , 48 L.Ed. 2d 39 , wholly abandoned this standard. Note, “The Right of Criminal Defendants and the Subpoena Duces Tecum: The Aftermath of Fisher v. United States,” 95 Harv.L.Rev. 683 (1982). Instead, it resorted to a test, extrapolated from cases involving nondocumentary evidence, that focused solely upon the testimonial character of evidence. 1 See, e.g., Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966) (no Fifth Amendment protection to giving of blood samples because such act is neither testimonial nor relative to some communicative act or writing); Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967) (applying Schmerber exception from Fifth Amendment protection to handwriting exemplars); United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967) (applying Schmerber exception from Fifth Amendment protection to voice exemplars). The Fisher Court held that a government subpoena violates the Fifth Amendment only when “the accused is compelled to make a testimonial communication that is incriminating.” Fisher, supra, 425 U.S. at 408 , 96 S.Ct. at 1579 , 48 L.Ed.2d at 54 .

This new standard devised by the Supreme Court in Fisher impelled it to distinguish between the act of producing documents and the act of revealing the contents of such doe *242 uments. The Court recognized that under certain circumstances the act of production might be protected — if the act of production itself was compelled and was “testimonial” in character. Id. at 411 , 96 S.Ct. at 1581 , 48 L.Ed.2d at 56 . Conversely, the Court reasoned that because the government had not compelled the creation of the subpoenaed document, the existence of the document’s contents should be deemed voluntary rather than compelled; hence, no Fifth Amendment protection should be accorded to the disclosure of the document’s contents. Id. 409-410 , 96 S.Ct. at 1580-81 , 48 L.Ed.2d at 55 .

Most recently, in United States v. Doe, supra, 465 U.S. 605 , 104 S.Ct. 1237 , 79 L.Ed.2d 552 , on facts virtually identical to this case, the Court confirmed the Fisher ruling, holding that the contents of voluntarily prepared business records of a sole proprietor fell outside the protections of the Fifth Amendment. With one eye toward Fisher , and noting that “[Respondent does not contend that he prepared the documents involuntarily or that the subpoena would force him to restate, repeat, or affirm the truth of their contents,” id. at 611-12, 104 S.Ct. at 1242 , 79 L.Ed.2d at 559-60 , the Court ruled “that the contents of [the Doe] records are not privileged.” Id. at 612 , 104 S.Ct. at 1242 , 79 L.Ed.2d at 560 . The Doe Court further remarked that “[although the contents of a document may not be privileged, the act of producing the document may be.” Id. It acknowledged, however, that while the act of production pursuant to a subpoena constitutes compelled production, the Fifth Amendment only protects the act of production to the extent that it additionally possesses “testimonial aspects and incriminating effect[s].” Id. 2

*243 It is evident that under current Fifth Amendment doctrine, no constitutional protection is extended to a sole proprietor to prevent the compelled production of his personal business records provided the production of such records is itself both non-testimonial and non-incriminatory in character. Further, the Fifth Amendment affords no protection against the compelled disclosure of the contents of such records if the records themselves were voluntarily created. The majority is therefore accurate in its assessment of the federal constitutional privilege in this case. The Fifth Amendment assuredly would not prevent enforcement of the subpoena to compel the production of Guarino’s records or the disclosure of their contents, as long as immunity is furnished against the prosecutorial use of any of the testimonial effects attending such production.

II.

We may fairly ask, however, whether current Fifth Amendment doctrine, as exemplified in Fisher and Doe , sheds light upon or gives determinative meaning to the State common-law privilege against self-incrimination. I am firmly of the opinion that the essential understanding of our state law mirrors that of the federal decisional law prior to the mutational change wrought by Fisher and Doe . I have no hesitancy in concluding on grounds of clear public policy, strong state traditions, and consistent decisional precedent, that our common-law privilege against self-incrimination fully embraces the notion of protecting the personal privacy of the individual. Accordingly, our privilege does not accommodate the highly restricted view of affording protection solely to the compelled production of personal records; nor does it tolerate a distinction between the compelled production of voluntarily created personal records on *244 the one hand and, on the other, the resultant disclosure of the contents of such records once they have been produced.

A.

Fisher and Doe have earned substantial criticism and- generated considerable uncertainty with respect to their justification, meaning and application. This counsels strongly against the passive adoption of these decisions as reflective of the meaning and scope of the state common-law privilege against self-incrimination. 3

The bifurcation of the privilege against self-incrimination between acts of production and revelation of contents has proved artificial and perplexing. Heidt, “The Fifth Amendment Privilege and Documents — Cutting Fisher’s Tangled Line,” 49 Mo.L.Rev. 439, 473 (1984) (under Fisher , “innocuous documents may now be suppressed and highly incriminating documents compelled____ That the government only wants the documents and is not interested in using the implied admissions is [treated as] immaterial”). One court has gone so far as to indicate that it “is unable to understand why the most important element, the contents of the documents, has no Fifth Amendment privilege, but the Supreme Court has spoken clearly on this issue; and that court, not this court, makes the law.” United States v. McPhaul, 617 F.Supp. 58, 60 (W.D.N.C.1985). An effect of this forced distinction is to concentrate the ensuing analysis upon the act of production, which is usually the pivotal event involving government compulsion. Having confined the privilege to the compulsion that attends production, courts are constrained to determine whether the act of production is *245 “testimonial” in character since the privilege applies only to testimonial compulsion. Hence, the inquiry that this standard impels becomes somewhat unreal, dissecting the act of production for evidence of such elusive and esoteric constructs as the “tacit concession of existence” or “implicit authentication” of documents. E.g., In re Grand Jury Subpoena Duces Tecum Dated November 13, 1984, 616 F.Supp. 1159, 1161 (E.D.N.Y. 1985).

The infirmity of the Fisher-Doe dichotomy is vividly demonstrated by the confusion, and perhaps the discomfort, of lower federal courts called upon to apply this newly formulated criterion to purely personal papers. In United States v. (Under Seal), 745 F.2d 834 (4th Cir.1984), cert. granted, 469 U.S. 1188 , 105 S.Ct. 954 , 83 L.Ed.2d 962 (1985), the court quashed, on Fifth Amendment grounds, a subpoena issued to a target of a grand jury investigation compelling production of certain specified records held by him in his individual capacity. Although asserting the Supreme Court’s mandate that the contents of a sole proprietor’s records are not clothed with Fifth Amendment protection, id. at 835-36 n. 2 citing United States v. Doe, supra, 465 U.S. 605 , 104 S.Ct. 1237 , 79 L.Ed.2d 552 , the Fourth Circuit returned to Boyd’s privacy focus for purposes of evaluating protection of an individual’s personal papers, stating that

[t]he fundamental teaching of Boyd is consistent with this purpose: the forced disclosure of private incriminating information jeopardizes the individual’s right to keep at least that aspect of himself which is reflected in his private papers free from the intrusive hands of the government. Implicit in the cherished right of the individual to “pursue happiness” is the concomitant right to express one’s own thoughts free from the government’s exaction of those thoughts upon penalty of one’s liberty. We therefore hold, in line with Boyd that the fifth amendment prevents the government from subpoenaing an individual’s incriminating papers that are in his possession and are held by him in an individual, as opposed to representative capacity. [Id. at 840 (citations omitted).]

In In re Grand Jury Subpoenas Served Feb. 27, 1984, 599 F.Supp. 1006, 1009 (E.D.Wash.1984), the court reached a similar result despite feeling constrained to acknowledge that the *246 contents of non-business personal papers would be rendered unprivileged under a “mechanical application of the Fisher test.” Id. at 1010. Notwithstanding this recognition of the Fisher-Doe restrictions, the court declined to be bullied into a posture of not affording protection to an individual’s private papers. But see Butcher v. Bailey, 753 F.2d 465 (6th Cir.1985) (Fifth Amendment protection not accorded to contents of individual’s personal records because information contained in records not so intimately personal as to evoke serious privacy concerns); Note, “Abolition of Fifth Amendment Protection for the Contents of Preexisting Documents: United States v. Doe,” 38 S.W.L.J. 1023, 1036-37 (1984) (“the Court [has not] offered a rationale for how private papers could be protected that is consistent with the emphasis on compulsion [under its Fisher/Doe analysis]”).

Because of the unsoundness of this new conceptualization of the Fifth Amendment, I am persuaded by Justice Brennan’s reasoning that would keep the focus not solely upon the testimonial incidents that can be read into the act of producing personal records. Rather, the target should be the contents of documents, which are the heart of the Fifth Amendment’s solicitude for privacy and the true object of the government’s compulsory efforts. The Fifth Amendment’s protection should attach to an individual’s books and papers because their contents can be equated with an individual’s mental notations.

The common-law and constitutional extension of the privilege to testimonial materials, such as books and papers, was inevitable. An individual’s books and papers are generally little more than an extension of his person. They reveal no less than he could reveal upon being questioned directly. Many of the matters within an individual’s knowledge may as easily be retained within his head as set down on a scrap of paper. I perceive no principle which does not permit compelling one to disclose the contents of one’s mind but does permit compelling the disclosure of the contents of that scrap of paper by compelling its production. Under a contrary view, the constitutional protection would turn on fortuity, and persons would, at their peril, record their thoughts and the events of their lives. The ability to think private thoughts, facilitated as it is by pen and paper, and the ability to preserve intimate memories would be curtailed through fear that those thoughts or the events of those memories would become the subject of criminal sanctions however invalidly imposed. Indeed, it *247 was the very reality of those fears that helped provide the historical impetus for the privilege. See Boyd v. United States, supra, [116 U.S.] at 631-632, 29 L.Ed. 746 , 6 S.Ct. 524 [, at 532-33]; E. Griswold, The Fifth Amendment Today 8-9 (1955); 8 J. Wigmore, Evidence § 2250, pp. 277-281 (McNaughton rev. 1961); id., § 2251, pp. 313-314; McKay, Self-Incrimination and the New Privacy, 1967 Supreme Court Review 193, 212. [Fisher, supra, 425 U.S. at 420 , 96 S.Ct. at 1585-86 , 48 L.Ed.2d at 61-62 (Brennan, J., concurring).]

Assuming, moreover, that as a matter of logical analysis the contents of documents can be separated from their production, this analytical parsing should not serve to truncate or attenuate the substance of the privilege itself. There is nothing in the Fifth Amendment that insists that the contents of documents be created through compulsion in order to secure their protection — no more so than the thought which precedes the expression must itself be forced in order for the privilege to apply to a person’s mental processes and verbalizations. As Justice Brennan observed, “it does not follow that the protection is necessarily unavailable if the papers were prepared voluntarily, for it is the compelled production of testimonial evidence, not just compelled creation of such evidence, against which the privilege protects.” Id., 425 U.S. at 423 , 96 S.Ct. at 1587 , 48 L.Ed.2d at 63 . 4

*248 I am satisfied that the Fisher-Doe doctrine does not reflect a sound policy that can be commended as an interpretive source of the State’s common-law privilege against self-incrimination. It is a doctrine that is problematic in its historical origins, contrary to constitutional tradition, a departure from longstanding constitutional philosophy, and productive of artificial and arbitrary applications. Our own common-law privilege against self-incrimination springs from a source that antedates Fisher-Doe and is nourished by constitutional principles alien to those that now dominate the Fifth Amendment.

B.

The privilege against self-incrimination, “although not written into our State Constitution, is firmly established as part of our common law.” State v. Vinegra, 73 N.J. 484, 488 (1977) (citations omitted). See State v. Hartley, 103 N.J. 252 (1986). The privilege is also incorporated in our Rules of Evidence. See Evid.R. 23, 24 and 25. It is a common-law doctrine that carries all of the vigor of constitutional law. “New Jersey courts from the earliest times have been zealous to protect [this] important common law right — that of free men to be shielded from compulsory self-incrimination.” State v. Vinegra, supra, 73 N.J. at 494 (Weintraub, C.J., dissenting); see State v. Zdanowicz, 69 N.J.L. 619, 622 (E. & A. 1903) (“Although we have not deemed it necessary to insert in our constitution [the privilege against self-incrimination], the common law doctrine ... is by us deemed to have full force. In New Jersey, no person can be compelled to be a witness against himself”); Fries v. Bugler, 12 N.J.L. 79, 81 (Sup.Ct.1830) (“a witness cannot be called upon to impute to himself a crime or to bring reproach upon himself”); ante at 230 n. 7. The protection it is designed to achieve is a “basic policy against self-condemnation.” State v. DeCola, 33 N.J. 335, 341 (1960).

It stands unquestioned that our State common-law privileges may provide more exhaustive protection than that afforded *249 under similar or identical federal constitutional doctrine. See, e.g., Dairy Stores Inc. v. Sentinel Publishing Co., Inc., 104 N.J. 125 (1986). The common-law privilege against self-incrimination itself is more protective than its federal counterpart. See State v. Vinegra, supra, 73 N.J. at 490 (“The common law privilege against self-incrimination in New Jersey as expounded in our target doctrine seems to afford greater protection than that given by the Fifth Amendment”); State v. Deatore, 70 N.J. 100, 112 (1976) (“We reach that conclusion as a matter of state law and policy, as to which we may impose standards more strict than that [sic] required by the federal Constitution”). Hence, I conclude that the common-law privilege against self-incrimination protects the contents of a sole proprietor’s business records consistent with our unyielding commitment to individual privacy concerns.

As acknowledged by the majority, ante at 230-231, the underlying rationale for our common-law privilege against self-incrimination was identified by Justice Brennan, while still a member of this Court, in In re Pillo, 11 N.J. 8, 15-16 (1952):

In modern concept its wide acceptance and broad interpretation rest on the view that compelling a person to convict himself of a crime is “contrary to the principles of free government” and “abhorrent to the instincts of an American,” that while such a coercive practice “may suit the purposes of despotic power ... it cannot abide the pure atmosphere of political liberty and personal freedom.” Boyd v. United States, 116 U.S. 616, 632 , 6 S.Ct. 524 [533], 29 L.Ed. 746, 751 (1886).

This incorporation of Boyd , a case noteworthy for its endorsement of privacy values as the foundation of the Fifth Amendment privilege against self-incrimination, see discussion, supra at 222-223, provides firm grounds for rejecting, as a matter of common-law, any analysis which diminishes the import of privacy values. The majority also aptly quotes Justice Brennan’s reiteration in Fisher of the privacy interests protected by our common-law privilege. Ante at 230-231. In light of the majority’s holding in this case, Justice Brennan’s reaffirmation is all the more poignant for its insistence that the rights of *250 privacy be realized, not merely acknowledged while being diminished:

The Court pays lip service to this bedrock premise of privacy ... [b]ut this only makes explicit ... the view that protection of personal privacy is merely a byproduct and not, as our precedents and history teach, a factor controlling in part ... the scope of the privilege. This ... approach is fundamentally at odds with the settled principle that the scope of the privilege ... has the re'ach necessary to protect the cherished value of privacy which it safeguards. [Id., 425 U.S. at 416 , 96 S.Ct. at 1584 , 48 L.Ed.2d at 59 (Brennan, J., concurring).]

In the context of a subpoena duces tecum that has as its purpose “obtainfing] the production of documents ... that will aid in the development of testimony at trial,” State v. Kaszubinski, 177 N.J.Super. 136, 141 (Law Div.1980), the need to vigilantly safeguard the privilege becomes particularly acute because the State’s primary objective is to enhance its case through compelling an individual to dispossess his own papers, hoping to subsequently uncover incriminating information. Accord State v. Hunt, 91 N.J. 338 (1982). 5 Recognizing the grave intrusion that sanctioning such a process would have on one’s individual liberties, this Court, in In re Addonizio, 53 N.J. 107 (1968) sent out an unequivocal message that it would not tolerate such an offensive use of an individual’s personal documents. Addonizio involved a subpoena directing that appellant produce certain records kept in his individual capacity before a grand jury. The producer was in fact the target of a grand jury investigation. The Court, relying on a logical per *251 ception of the intended use of the subpoenaed documents, quashed the subpoena on the grounds that “it is inconceivable that the records of Addonizio could reveal criminality upon the others without also implicating him.” Id. at 117 . Purely to protect an individual from the damaging consequences of his personal papers, this Court precluded use of the contents of the documents.

The result in Addonizio , although admittedly pre-dating Fisher and Doe , was wholly inspired by the principles expressed much earlier in Boyd and adopted and reiterated in In re Pillo, supra, 11 N.J. at 15-16 , as a matter of state common-law. The importance of safeguarding individual privacy has continued unabated within our state. See State v. Hartley, supra, 103 N.J. 252 .

I concur, in short, in Justice Brennan’s rejection of the notion that privacy “is merely a byproduct and not, as our precedents and history teach, a factor controlling in part the determination of the scope of the [Fifth Amendment] privilege.” Fisher v. United States, supra, 425 U.S. at 416 , 96 S.Ct. at 1584 , 48 L.Ed.2d at 59 . In so concurring, I follow the view embraced by this Court in In re Pillo, supra, 11 N.J. at 15-16 , wherein Justice Brennan for this Court explicated New Jersey’s common-law privilege against self-incrimination. This reasoning, augmented by the view expressed in Bellis v. United States, supra, 417 U.S. 85 , 94 S.Ct. 2179 , 40 L.Ed.2d 678 , that the “zone of privacy” would extend to the business records of a sole proprietor, justifies the conclusion in this case that the contents of Guarino’s subpoenaed documents command protection.

I am satisfied that the New Jersey common-law privilege against self-incrimination is fully protective of an individual’s personal privacy interests, and would extend to the attempted prosecutorial use of any incriminating evidence that is of a testimonial nature. It would accord protection against the compelled production and resultant disclosure of the contents of *252 an individual’s personal business records. This common-law privilege is firmly grounded on sound principles of public policy that are solicitous of the personal privacy protected in the criminal law context. Further, these principles, which reflect a strong state tradition that respects individual privacy, have been consistently confirmed by decisional precedent. For these reasons I would hold that a subpoena may not be enforced to compel an individual to produce private and personal records relating to the conduct of his sole business.

The United States Supreme Court was unable, in Fisher and Doe , to remove the Boyd-Bellis privilege from the tax, telephone, and business records of sole proprietors without also abandoning the privacy rationale that supported the privilege. Subsidiary authorities, cited by the majority as recognizing “the apparent anomaly of protecting the business records of a sole proprietor but not those of a corporation, partnership or other artificial entity,” ante at 233, have seen such protection as anomalous precisely because they have also recognized that Fisher and Doe render the privacy of the documents’ contents irrelevant:

Since Boyd , the protection afforded contents has been largely eroded____ Although we do not read [Fisher and Doe ] as holding that the contents of private papers are never privileged, it is evident ... that if contents are protected at all, it is only in rare situations, where compelled disclosure would break “the heart of our sense of privacy.” [Butcher v. Bailey, 753 F.2d 465 ; 468-69 (6th Cir.1985), quoting United States v. Doe, 465 U.S. 605 , 104 S.Ct. 1237 , 1246 n. 2 [ 79 L.Ed. 2d 552 ] (1984) (Marshall, J., concurring).]

See also In re Grand Jury Proceedings (United States), 626 F. 2d 1051, 1054 (1st Cir.1980) (“Since Boyd , the rule has been hedged about with exceptions and its rationales have been rejected”; post-Fisher but pre-Doe). United States v. Schlansky, 709 F.2d 1079, 1083 (6th Cir.1983), observed that Boyd “retains its full vigor as to those ‘privacies of life’ which are beyond the pale of legitimate government intrusion,” quoting Note, “Formalism, Legal Realism, and Constitutionally Protected Privacy Under the Fourth and Fifth Amendments,” 90 Harv.L.Rev. 945, 947 (1977). This observation was made prior *253 to Doe , however, while the Supreme Court was still on record in Bellis as believing that the business records of sole proprietors were among “the privacies of life” (though Fisher’s rejection of a privacy-based Fifth Amendment privilege cast doubt upon the vitality of Bellis). Withdrawal of the Fifth Amendment privilege from the business records of sole proprietors resulted not from a change of mind on the narrow issue of whether such records are private, as citation of those cases implies, but from a change of heart on the general proposition that the privacy they implicate matters. The cases cited by the majority view protection of a sole proprietor’s business records as anomalous, ante at 233-234; they do so because they reject a perception of privacy that posits a distinction between sole proprietorships and other forms of business organization. They acknowledge that the anomaly is a function of the erosion of Boyd , not, as the majority insists, a faithful application of its underlying principles.

The majority, by contrast, purports to do what the Supreme Court and other authorities have recognized to be impossible: to withdraw the privilege while retaining the privacy rationale supporting it. If, as the majority insists, the pre-Fisher, Boyd -inspired federal decisions — and not Fisher and Doe — are to inform this State’s common-law privilege, the majority’s decision today simply cannot be squared with the final pr e-Fisher case, Bellis , in which the Court extended the privilege explicitly “to the business records of the sole proprietor or sole practitioner as well as to personal documents containing more intimate information about the individual’s private life.” I believe that the United States Supreme Court reasoned correctly while ruling incorrectly; the boundary between personal and public is so nebulous in the case of a sole proprietor that the privilege cannot be denied without abandoning the rationale supporting it. The majority, in short, cannot have it both ways. Its attempt to do so conflates a Fisher -informed result with incongruous privacy reasoning. For this reason, I agree that priva *254 cy controls the state common-law privilege, but dissent from the majority’s application of the privacy standard.

C.

I add to the foregoing analysis the observation that the records in this case would also be protected from disclosure under the state immunity statute, N.J.S.A. 2A:81-17.3. While this statute contains the same language as the federal immunity statute, 18 U.S.C. § 6002 , I would construe it more broadly in order to accommodate the common-law privilege against self-incrimination which the statute serves to effectuate.

That interpretation is not in the slightest contrary to the intent or language of the Legislature. The statute provides in relevant part:

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. [N.J.S.A. 2A:81-17.3.]

I would construe the phrase “directly or indirectly derived from such [privileged] * * * evidence” as completely protecting an individual from the incriminating use of the contents of documents produced under the compulsion of a subpoena. As noted by the Supreme Court in Doe, 465 U.S. at 617, n. 17 , 104 S.Ct. at 1244-45, n. 17 , 79 L.Ed.2d at 563 , n. 17: “[t]o satisfy the requirements of the Fifth Amendment, a grant of immunity need be only as broad as the privilege against self-incrimination,” citing Murphy v. Waterfront Comm’n, 378 U.S. 52, 107 , 84 S.Ct. 1594, 1618 , 12 L.Ed.2d 678, 712 , (1964) (White, J., concurring); see Pillsbury Co. v. Conboy, 459 U.S. 248, 253, n. 8 , 103 S.Ct. 608, 612, n. 8 , 74 L.Ed.2d 430 (1983); United States *255 v. Calandra, 414 U.S. 338, 346 , 94 S.Ct. 613, 619 , 38 L.Ed.2d 561, 570 , (1974).

The scope of protection attached to the statutory language of N.J.S.A. 2A:81-17.3 must coincide with the common-law privilege itself. It calls for an interpretation that independently protects all contents or, at a minimum, accords derivative protection of a document’s contents in the absence of the State’s demonstrating that it obtained the compelled, testimonial incriminating aspects arising from the privileged act of production independently. 6 Cf. State v. McKenna, 94 N.J.Super. 71, 75-76 (Cty.Ct.1967) (“the ‘communicative’ or ‘testimonial’ evidence protected by the Fifth Amendment is that by which the State obtains knowledge solely within the defendant’s possession concerning the crime with which he is accused, and ... such knowledge was obtained by ... coercion”).

The strength of this analysis rests upon an acceptance of the traditional Boyd standard, which has thus far prevailed in this state, and, as the majority affirms, remains unimpaired by Fisher and Doe .

III.

With the majority of this Court, I accept reluctantly the rulings of the Supreme Court, now embodied in Fisher and Doe , as to the scope of protection applicable to subpoenaed individual personal business records under the Fifth Amendment. That protection would not in this case bar the compelled production of Guarino’s subpoenaed records or the subsequent disclosure of their contents under a statutory grant of immunity limited to the act of production. Consequently, Guarino may well under the Fifth Amendment be exposed to incrimination.

I cannot, however, agree with this Court that our common-law privilege against self-incrimination would countenance this *256 result. For the reasons expressed, I would order the subpoena quashed or require the State to accord immunity against any incriminating evidence derived from the disclosure of the contents, as well as the production, of Guarino’s records, commensurate with the dimensions of our common-law privilege against self-discrimination. Accordingly, I dissent.

Justices CLIFFORD and POLLOCK join in this opinion.

For reversal and remandment — Chief Justice WILENTZ, and Justices O’HERN, GARIBALDI and STEIN — 4.

For affirmance — Justices CLIFFORD, HANDLER and POLLOCK — 3.

The Supreme Court rationalized its conclusion as follows:

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, the 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.

We cannot cut the Fifth Amendment completely loose from the moorings of its language, and make it serve as a general protector of privacy — a word not mentioned in its text and a concept directly addressed in the Fourth Amendment. We adhere to the view that the Fifth Amendment protects against "compelled self-incrimination, not [the disclosure of] private information.” [Fisher v. United States, supra, 425 U.S. at 400-01 , 96 S.Ct. at 1576 , 48 L.Ed.2d at 50 (citation omitted).]

Because in Doe the District Court found that producing the documents would "compel [respondent] to admit that the records exist, that they are in his possession, and that they are authentic," the Supreme Court ruled that the act of production involved testimonial 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 . This result was unlike that reached in Fisher , where the Court held that the act of production would not be testimonial because "the existence and location of the *243 papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the government’s information by conceding that he in fact has the papers." Fisher v. United States, supra, 425 U.S. at 411 , 96 S.Ct. at 1581 , 48 L.Ed.2d at 56 .

One judge described his role in discerning the present state of the law surrounding the Fifth Amendment privilege as that of a "tea leaves” reader, United States v. Karp, 484 F.Supp. 157, 158 (S.D.N.Y.1980), while another judge has characterized his task as searching for “[t]he clues to [a] mystery____" In re Grand Jury Subpoenas Served February 27, 1984, 599 F.Supp. 1006, 1009 (E.D.Wash.1984).

Justice Marshall also recognized the infirmity of the Court’s attempted distinction between the creation of documents and the production of documents. He predicted in Fisher that act-of-production immunity arising from self-incriminating existence testimony would derivatively protect the documents' contents.

Under the Court’s theory, if the document is to be obtained the immunity grant must extend to the testimony that the document is presently in existence. Such a grant will effectively shield the contents of the document, for the contents are a direct fruit of the immunized testimony — that the document exists — and cannot usually be obtained without reliance on that testimony. Accordingly, the Court's theory offers substantially the same protection against procurement of documents under grant of immunity that our prior cases afford. [Fisher v. United States, supra, 425 U.S. at 433-34 , 96 S.Ct. at 1592 , 48 L.Ed.2d at 69-70 (Marshall, J. concurring).]

It is obvious that this understanding is not shared by the Supreme Court. See, e.g., United States v. Doe, supra, 465 U.S. at 617, n. 17 , 104 S.Ct. at 1244-45, n. 17 , 79 L.Ed.2d at 563, n. 17 .

In State v. Hunt, 91 N.J. 338 (1982), we were posed with the question of whether an individual has a protectible interest in toll billing records held by the telephone company. Although recognizing that any claim of Fourth Amendment protection was foreclosed by the Supreme Court in Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967), we turned to the New Jersey Constitution to afford the defendant protection. Relying on our view that "the equities ... strongly favor protection of a person's privacy interest," State v. Hunt, supra, 91 N.J. at 345 , we determined that an individual "is entitled to assume that the numbers he dials in the privacy of his own home will be recorded solely for the telephone company's business purposes.” Id. at 347 . Accordingly, upon holding the toll billings record to be part of the "privacy package,” we determined that such records were improperly seized without warrants based on probable cause.

This result may arguably be analogized to the "use and fruits" immunity power of the SCI discussed in In re Ippolito, 75 N.J. 435 (1978).