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Can a Corporation Invoke the Fifth Amendment Right Against Self-Incrimination?

In a word, “no.”  Corporations do not have any rights under the Self-Incrimination Clause of the Fifth Amendment to the U.S. Constitution.

Ordinarily, that clause protects persons from being forced to give testimony that could implicate them in a crime.  But courts have long held that the clause does not apply to corporations.  They reason that because the state has created corporations, it can demand that a corporation provide information in connection with a criminal investigation.

When a corporation receives a grand jury subpoena for documents, it must give the government the documents that it requests (assuming no other privilege – for example, the attorney-client privilege – applies), even if those documents incriminate the corporation. 

Individuals who work for the corporation, of course, retain their own rights under the Fifth Amendment even if the corporation itself has none.  For that reason, things get complicated when a corporate employee, in her capacity as a representative of the corporation, receives a government subpoena calling for information that would incriminate the employee personally.

If such a subpoena calls for the production of corporate records, the employee cannot invoke the Fifth Amendment, even if the corporate records would incriminate her.  That is because the records are considered to be the corporation’s, not the individual’s.

However, if someone is subpoenaed to give oral testimony – even in their capacity as an employee of the corporation – they may assert the Fifth Amendment and refuse to answer questions.

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