Fifth Amendment. The federal government was investigating a corporation and its employees. The alleged criminal wrongdoing, which included the falsification of corporate books and records, occurred between 1993 and 1996 in one division of the

Question

corporation. In 1999, the corporation pled guilty and agreed to cooperate in an investigation of the individuals who might have been involved in the improper corporate activities. "Doe I," "Doe II," and "Doe III" were officers of the corporation during the period in which the illegal activities occurred and worked in the division where the wrongdoing took place. They were no longer employed by the corporation, however, when, as part of the subsequent investigation, the government asked them to provide specific corporate documents in their possession. All three asserted the Fifth Amendment privilege against self-incrimination. The government asked a federal district court to order the three to produce the records. Corporate employees can be compelled to produce corporate records in a criminal proceeding because they hold the records as representatives of the corporation, to which the Fifth Amendment privilege against self-incrimination does not apply. Should former employees also be compelled to produce corporate records in their possession? Why or why not?

Answer 1

Fifth Amendment
The court held that "the act of testimonial [production] on behalf of a person who is no longer with the corporation is self incrimination in its classic sense of the word, and the Constitution does not permit it." The government appealed to the U.S. Court of Appeals for the Second Circuit, which affirmed the holding of the lower court. The appellate court acknowledged that "a current corporate employee, . . . who had been individually subpoenaed to produce corporate books and records, could not invoke the Fifth Amendment to refuse production even though the documents might provide the government with evidence that could incriminate him." The court reasoned that here, in the case of ex-employees, "[s]ince Doe I, Doe II and Doe III are no longer employed by the corporation whose documents the government seeks, and therefore do not hold the corporate documents in a representational capacity, . . . each may claim a Fifth Amendment act of production privilege."