31 Pages Posted: 19 Feb 2009
Date Written: February 19, 2009
In corporate crime investigations, when prosecutors pursue charges against both employees and corporations, confessions raise several novel questions without clear answers in constitutional criminal procedure. First, corporations confess. The firm, a target of a criminal investigation, may itself admit to crimes by employees as part of a settlement agreement with prosecutors. While useful to study in their impact and form, as a constitutional matter such confessions can not be coerced; the Supreme Court has adopted a "collective entity rule" that corporate persons may not invoke Fifth Amendment privilege. Second, before itself confessing, the firm may encourage employees to provide statements to law enforcement, placing some in the precarious position of deciding whether to speak and inculpate themselves or invoke Fifth Amendment privilege and be disciplined or fired. The question then arises whether the Fifth Amendment protects such employees. This Article develops how the Fifth Amendment, as interpreted by the Supreme Court in its line of "penalty cases," offers scant protection absent substantial formal cooperation between prosecutors and the employer. Instead, cooperation with internal investigators and law enforcement will be structured by employment contracts and a firm's interest in avoiding conflicts of interest and formation of unintended attorney-client relationships between employees and corporate counsel. Thus, not only may the corporation confess, but the environment in which employee confessions occur is largely defined by interests of the corporation.
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