CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, April 29, 2021

Maclin on Fifth Amendment Protection for Corporate Officers

Tracey Maclin (Boston University - School of Law) has posted Long Overdue: Fifth Amendment Protection for Corporate Officers (Forthcoming Boston University Law Review, 2021) on SSRN. Here is the abstract:
The Supreme Court has extended to corporations many of the same constitutional rights that were originally intended to protect people. One notable exception, however, is the Fifth Amendment’s prohibition on compulsory self-incrimination. “Corporations may not take the Fifth.” There is a long line of cases dating back to the start of the twentieth century stating – but never directly holding – that corporations are not protected by the self-incrimination clause.

But the fact that a corporation cannot invoke the Fifth does not explain why a person who works for a corporation cannot. As a matter of text, the Fifth Amendment draws no distinction among the “person[s]” it protects; everyone is protected – citizens and non-citizens. And the amendment certainly does not distinguish among “person[s]” depending on where they work or whether they are employed or not. Indeed, because the Justices agree, as Justice Scalia once noted, that “[a]ll the provisions of the Bill of Rights set forth the rights of individual men and women – not, for example, of trees or polar bears,” an individual who works for a corporation—for example, the president or treasurer—is protected by the Fifth, when forced to produce corporate records that will personally incriminate him.

Yet despite the plain text of the Fifth Amendment, the Court has concluded otherwise. According to the Justices, a person may be compelled “simply by virtue of his status as a corporate custodian, to perform a testimonial act which will incriminate him personally.” Why? Because the Court has fused the person with the corporation. The Court “has assimilated the position of company officials to that of the corporation they serve.” Even the sole shareholder who runs a small business as his alter ego can be compelled to provide incriminating testimonial evidence due to his status as a corporate officer.

This article examines and challenges the Court’s longstanding view that an individual who works for or joins an organization is not protected by the Fifth Amendment when compelled to produce incriminating records that ostensibly belong to the organization. Known as the “collective entity” or “artificial entity” rule, the Court has described this rule as having “a lengthy and distinguished pedigree.” To be sure, the collective entity rule dates back to the start of the twentieth century. But there is nothing “distinguished,” and little to celebrate, about the rule. That is, unless one believes that certain persons, based on employment status or membership in an organization, should be compelled to give the government incriminating testimony.

The collective entity rule defies the text of the Fifth Amendment, the common law history of the privilege, and the Court’s Fifth Amendment precedents, which unmistakably establish that one’s employment status does not diminish the protection provided by the Fifth Amendment or the ability to invoke it.

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