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So I googled "can corporations plead the fifth?" and I got a bunch of non-cited sketchy sources.

Is there a precedent around a corporation refusing to produce documents as a result of a subpoena to prevent self-incrimination?

A hypothetical would be if my corporation was consulting for a foreign government and had documents that said my company had used my position in my home government to help the foreign government. If the corporation had documents that proved it had intentionally mishandled that relationship or a conflict of interest would the corporation be able to invoke the fifth amendment to not have to produce those doucments?

5

As far as I know, the leading case on the matter is Hale v. Henkel, 201 US 43. There, the court explains

While an individual may lawfully refuse to answer incriminating questions unless protected by an immunity statute, a corporation is a creature of the State, and there is a reserved right in the legislature to investigate its contracts and find out whether it has exceeded its powers. There is a clear distinction between an individual and a corporation, and the latter, being a creature of the State, has not the constitutional right to refuse to submit its books and papers for an examination at the suit of the State; and an officer of a corporation which is charged with criminal violation of a statute cannot plead the criminality of the corporation as a refusal to produce its books.

The court specifically denies that corporations have 5th Amendment rights:

The benefits of the Fifth Amendment are exclusively for a witness compelled to testify against himself in a criminal case, and he cannot set them up on behalf of any other person or individual, or of a corporation of which he is an officer or employe.

This contrast with protection against unreasonable searched of corporations, per the 4th Amendment:

A corporation is but an association of individuals with a distinct name and legal entity, and, in organizing itself as a collective body, it waives no appropriate constitutional immunities, and, although it cannot refuse to produce its books and papers, it is entitled to immunity under the Fourth Amendment against unreasonable searches and seizures, and, where an examination of its books is not authorized by an act of Congress, a subpoena duces tecum requiring the production of practically all of its books and papers is as indefensible as a search warrant would be if couched in similar terms.

Similarly, in Wilson v. United States, 221 U.S. 361,

the constitutional privilege against testifying against himself cannot be raised for his personal benefit by an officer of the corporation having the documents in his possession.

...

An officer of a corporation cannot refuse to produce documents of a corporation on the ground that they would incriminate him simply because he himself wrote or signed them, and this even if indictments are pending against him.

Likewise, United States v. White, 322 U.S. 694 ("The constitutional privilege against self-incrimination is essentially a personal one, applying only to natural individuals") and Bellis v. United States, 417 U.S. 85:

Fifth Amendment privilege against self-incrimination held not available to member of dissolved law partnership who had been subpoenaed by a grand jury to produce the partnership's financial books and records, since the partnership, though small, had an institutional identity and petitioner held the records in a representative, not a personal, capacity. The privilege is "limited to its historic function of protecting only the natural individual from compulsory incrimination through his own testimony or personal records."

So only natural persons can plead the fifth.

  • I am clearly not a lawyer so I cannot pretend that I really know that you're right but this sure looks very complete and convincing so I thank you for your help – ford prefect May 9 '18 at 13:03
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Corporations cannot be called to give testimony so the cannot claim the fifth. However, the criminal actions of a corporation are carried out by individuals who can claim the fifth - if all of them do so then the corporation is effectively shielded.

However, no one can refuse to provide properly subpoenaed documents even if they do incriminate you (provided they are admissible evidence e.g. client/lawyer communications and "without prejudice" communications are not). The fifth amendment means you cannot be forced to testify against yourself: documents are not testimony and are not protected.

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    I thought the same thing about documents and the Fifth Amendment; but it appears that a significant exception was carved out in U.S. v. Hubbell. If the act of producing the documents, or of admitting their existence, custody, or authenticity, would itself reveal incriminating information, then Fifth Amendment protections apply. – Nate Eldredge May 25 '17 at 2:22
  • @NateEldredge Read it more carefully - the protection only goes to the "testimonial" effect i.e. to the existence, custody and authenticity of the documents. If the prosecution can identify and subpoena particular document(s) that it knows exists and are in the defendant's custody (and that the production of does not demonstrate their authenticity) then they can't claim the fifth. – Dale M May 25 '17 at 3:11
  • Right, I did see that. But suppose, as a hypothetical, the government issues a subpoena for "all documents showing income that the company omitted from its tax returns", without any prior proof that such documents exist. If the company does have such documents, it will incriminate itself by producing them. An individual would appear to have a Fifth Amendment privilege against production here. Could a corporation refuse on similar grounds? – Nate Eldredge May 25 '17 at 3:23
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    I thought that was what this question was asking. – Nate Eldredge May 25 '17 at 4:06
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    There is definitely precedent on point, and I think that I recall that it holds that corporations are not protected, but I can't find my research to confirm that point. – ohwilleke May 8 '18 at 20:38

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