The Privilege Against Self-Incrimination in Bankruptcy and the Plight of the Debtor
61 Pages Posted: 26 Sep 2013 Last revised: 16 Sep 2018
Date Written: March 15, 2013
An innocent debtor, who is either ignorant of her constitutional right to the privilege against self-incrimination or ineffectual in asserting it, may find herself wrongfully convicted and imprisoned in a criminal matter, due to unwitting complicity in the delivery of testimony or documents in her bankruptcy case. This lack of understanding poses a serious risk to debtors, and especially affects the increasing number of pro se debtors in bankruptcy. The privilege extends to debtors in bankruptcy proceedings. However, a debtor who fails to properly invoke the privilege waives her rights. This possibility is made more probable because there is no requirement that she be told about the privilege prior to filing or interrogation.
Without any requirement of notice, there is no application of the exclusionary rule in civil proceedings. In short, the privilege must be invoked through an unambiguous assertion in bankruptcy, or it is lost. For this reason, the Court, under its rulemaking authority, should adopt a revised Official Form B201A for use in consumer bankruptcy cases, to ensure the just determination of every case and protect the debtor’s privilege. The revised form would provide pre-filing notice, in writing, of the privilege against self-incrimination. To accomplish this, the Judicial Conference of the United States should promulgate the proposed form pursuant to its rulemaking authority. This form would serve to make the debtor aware of the privilege prior to filing and the consequences of invocation and waiver, so that the privilege would not be lost through ignorance, inadvertence, or lack of competent counsel.
This article has four parts. Part I analyzes the scope and application of the privilege and distinguishes the privilege in bankruptcy from its counterpart in the custodial setting. Part II examines the increased risk to the pro se debtor and the value of the privilege both to the truly innocent who are seemingly guilty and the presumptively innocent regardless of guilt. Part III explores the plight of the debtor under current law and explains the risk of nondisclosure of the privilege. Finally, Part IV proposes a change in the language of Official Form B201A to alleviate the problems caused by nondisclosure. In short, the author’s thesis is that only through the pre-filing delivery of notice will the debtor's right to the privilege be meaningful.
Keywords: bankruptcy, self-incrimination, fifth amendment privilege
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