(222) The second and third phases inquire into the presence of incrimination and compulsion, respectively.
First, is cognition a variable like compulsion and incrimination? In what may prove to be the single most important word in the Hubbell opinion, the Court referred to the "extensive" effort that Hubbell had to make to respond to the subpoena.
Where compulsion or incrimination is missing or below the required threshold, there would be no privilege.
As under Fisher, there would be no privilege where either compulsion or incrimination was missing.
Lettow, Fifth Amendment, First Principles: The Self Incrimination Clause, 93 MICH.
424, 428-30 (1971) (upholding California's "hit and run" statute which required drivers of cars involved in accidents to stop at scene and provide their names and addresses because statute "was not intended to facilitate criminal convictions but to promote the satisfaction of civil liabilities arising from automobile accidents." "[T]he mere possibility of incrimination is insufficient to defeat the strong policies in favor of a disclosure called for by statutes like the one challenged here.").
The Court has allowed disclosure requirements in "required records" cases only where incrimination is not likely.
601, 606 (1971) (reversing dismissal of indictment for possession of unregistered hand grenades; registration statute did not violate Fifth Amendment because any risk of incrimination was "merely 'trifling or imaginary'" and not "substantial and real").
52, 78 (1964) ("[T]he constitutional privilege against self-incrimination protects a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law."), with United States v.