Curcio v. United States

Supreme Court of the United States · 1957 · Evidence

354 U.S. 118 (1957)

Updated August 22, 2026

EvidenceFifth AmendmentSelf-IncriminationGrand JuryLabor Union Recordscollective entity doctrineunion recordscustodian

Facts

Joseph Curcio was the secretary-treasurer of Local 269 of the International Brotherhood of Teamsters and was subpoenaed both personally to testify and in his representative capacity to produce the union's books and records before a federal grand jury investigating racketeering. He appeared but did not produce the records, testifying only that the union had books and records and that they were not then in his possession. He refused, on self-incrimination grounds, to answer questions about where the records were and who possessed them. The District Court ordered him to answer 15 such questions and convicted him of criminal contempt when he refused.

Issue

Whether the custodian of a union's books and records may invoke the Fifth Amendment privilege against self-incrimination to refuse to answer grand jury questions about the whereabouts of union records he did not produce pursuant to subpoena. More specifically, the question was whether the collective-entity rule that requires production of organizational records also eliminates the custodian's privilege as to incriminating oral testimony about missing records.

Rule

Although a custodian of corporate or association records has a representative duty to produce organizational books and records in response to a proper subpoena and cannot resist production on personal Fifth Amendment grounds, he cannot be compelled, absent adequate immunity, to give oral testimony that discloses the whereabouts or possession of records not produced when such testimony may incriminate him. The waiver of privilege inherent in custodianship extends only to production of the records themselves and to testimony merely auxiliary to documents already produced, not to compelled disclosure of the contents of the custodian's own mind about missing records.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Chicago, a federal grand jury subpoenas Dana Mercer, records secretary of Lakeshore Transit Guild, to produce the guild’s expense ledgers. Dana appears, says the guild has ledgers, but produces none. The prosecutor then asks, "Who has the ledgers right now, and where are they being kept?" Dana invokes the Fifth Amendment because the answer could link her to tampering with records.

Should Dana be compelled to answer those oral questions absent immunity?

Explanation. The controlling distinction is between production of collective-entity records and compelled oral testimony. A custodian has a representative duty to produce organizational records, but that duty does not eliminate the custodian’s personal privilege against being compelled to disclose, from the contents of her own mind, where unproduced records are or who possesses them. Without adequate immunity, such incriminating oral testimony is privileged.