Long Overdue: Fifth Amendment Protection for Corporate Officers

78 Pages Posted: 21 Apr 2021

See all articles by Tracey Maclin

Tracey Maclin

Boston University - School of Law

Date Written: 2021

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 because he is a corporate custodian to perform a testimonial act that will personally incriminate him. This is because the Court has fused the person with the corporation. 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.

Keywords: Fifth Amendment; Self-Incrimination Clause; the Fifth Amendment privilege; the privilege; invoking the Fifth; taking the Fifth; corporate officers; corporate custodian; collective entity; collective entity rule; artificial entity; corporation; Bill of Rights and corporations

Suggested Citation

Maclin, Tracey, Long Overdue: Fifth Amendment Protection for Corporate Officers (2021). Forthcoming Boston University Law Review, 2021, Available at SSRN: https://ssrn.com/abstract=3822656

Tracey Maclin (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-4888 (Phone)

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