(dissenting). In Commonwealth v. Doe, 405 Mass. 676 (1989), this court, in a similar case, declined to follow Federal jurisprudence holding that the Fifth Amendment to the Federal Constitution provides no protection against self-incrimination to the custodian of corporate records. See Braswell v. United States, 487 U.S. 99, 108-109 *556(1988). Writing of Braswell, we said: “In that case the Supreme Court held that a custodian of corporate records cannot rely upon the Fifth Amendment privilege against self-incrimination. Id. at 109. The Court reasoned that the custodian acts only as a representative, and that his act, therefore, is deemed to be one of the corporation only and not an act of the individual. Id. at 110. We decline to engage in such a fiction” (emphasis supplied). Doe, supra at 679.
We went on in Doe to rely on the protections of art. 12 of the Declaration of Rights of the Massachusetts Constitution and to hold that “an individual cannot be held in contempt for refusing to turn over [corporate] records when the act of doing so would incriminate him personally” (emphasis in original). Doe, supra at 680.
Yet today the court embraces a new fiction. Namely, that all can be made right under art. 12 by the artifice of a court-appointed keeper of corporate records so that the Commonwealth can evade the mandate of art. 12. Thus, states the court: “If the custodian of the corporate records cannot produce the records without implicating his personal art. 12 rights, an alternate keeper of the records can be appointed.” Ante at 553.
The word “fiction” has been defined generally as: “An imaginative creation or a pretence that does not represent actuality but has been invented.” American Heritage Dictionary 500 (2d C. ed. 1991). The same resource defines a fiction in law as: “Something accepted as fact without any real justification, merely for the sake of convenience.” Id.
I believe the dictionary definitions sum up what the court is doing today in regard to this closely held corporation. The practical effect of its ruling is that the only real persons involved, the two persons who are sole officers and corporation directors (one of whom is the keeper of the corporate records) may be reached by the prosecutorial device of using a grand jury’s powers to obtain records to indict and perhaps convict these individuals. All this, the court holds, is permissible, ignoring not only the protections of art. 12 but also the *557requirement of probable cause specified by art. 14 of the Declaration of Rights of the Massachusetts Constitution.
In my view, the thoughtful memorandum of decision by Judge Toomey of the Superior Court bears closer resemblance to reality. He wrote: “That preclusion, logically and constitutionally, extends to the compelling of custodians to deliver such documents to a third party. An order of this court directing the witnesses to transfer custody of corporate papers to a third party would have the effect of compelling the witnesses to testify as to the existence and location of the documents as well as the degree of control they exerted over the documents. The witnesses would not be testifying before the grand jury [themselves], but would nonetheless be providing incriminating information in connection with the grand jury investigation. The fact that a transfer to a grand jury conduit may be less incriminating than a direct transfer of documents to the grand jury does not alter the testimonial nature of the act and cannot justify a circumvention of the protection of art. 12. The mere transfer of documents by the witnesses to a third party may provide the Commonwealth’s investigators with information regarding the existence, control, and location of the documents which, in turn, might well prove crucial in an investigation and prosecution of the witnesses. A conduit will thus not satisfy the constitutional imperative.
“Finally, just as this court cannot order the witnesses to transfer the documents to a third party, it cannot order a third party to take possession of the corporate papers. Such an order would likely amount to a warrantless seizure in violation of the Fourth Amendment to the United States Constitution and [art.] 14 of the Declaration of Rights of the Massachusetts Constitution. See Commonwealth v. A Juvenile (No. 2), 411 Mass. 157 (1992). The status of any appointee as a private citizen would not change the fact that that person would be acting as an agent for the Commonwealth in seizing the corporate documents.”
Judge Toomey has it right. The court does not. Accordingly, I dissent.