The Whens and Whys of Asserting Fifth Amendment Privileges

Keep in mind that Fifth Amendment protections are available to the innocent as well as the guilty. As the Supreme Court has said, its basic function is to protect innocent individuals who otherwise might be ensnared by ambiguous circumstances. Grunewald v. United States, 353 U.S. 391, 421 (1957). Even the “truthful responses of an innocent witness” may provide the government with “incriminating evidence from the speaker's own mouth.” Ohio v. Reiner, 532 U.S. 17, 21 (2001).

At its most basic level, the Fifth Amendment offers clients protection against being compelled to provide information that directly supports their own conviction. It also protects clients from being compelled to provide information that could be used as a link in the chain of evidence to convict them. It's easy for a witness and her counsel to think of the Fifth Amendment when the answer to a question would directly inculpate the witness. It's a lot harder to guess which innocent answers may be links in a chain of inculpating evidence.

A typical link-in-the-chain response involves establishing either a witness's presence at the scene of the crime, or her opportunity to commit the crime. Suppose, in the investigation into the preparation of a company's press release, the U.S. Attorney's office does not find what it expected in the documents produced in response to the subpoena and opens an investigation into whether the company obstructed justice by destroying various drafts. Any employee who testifies to using the company's shredding machine, even for the perfectly legitimate reason of shredding his own credit card bills, may be providing the government a link in a chain of evidence against him.

Aside from providing evidence of an employee's opportunity to commit the crime under investigation, routine questions may reveal other areas of criminal conduct. For example, an employee may be called upon to testify before the SEC about his employer's usual practice in preparing press releases. A response to the seemingly innocuous introductory question “What is your occupation?” may provide a link in the chain of evidence against the witness who must admit working for a company under investigation. If the employee has not paid taxes on his salary from the company, the response would incriminate the witness on a matter not yet under investigation. Because the incriminating nature of the response called for often is not apparent on the face of the question, prudence generally dictates asserting the privilege for fear of the unknown. In this situation, the burden of demonstrating the availability of the privilege shifts to the witness. (In many situations, simply articulating the bases for her fear will require a witness to incriminate herself. When this situation arises, it is best to request that the court hear the witness's fears in camera.)

Witnesses are not required to prove that they will be prosecuted based on their answers or that their answers will provide a link in a chain of evidence against them. They merely are required to demonstrate that their fear of incrimination is reasonable. Courts variously use phrases such “not remote,” “not imaginary,” or of “not unsubstantial character” to describe fears deemed reasonable. The inquiry focuses on whether the potential response is incriminating, not on whether the government is likely to prosecute the witness. See Fisher v. I.R.S., 905 F.2d 645, 649 (2d. Cir. 1990). Indeed, any promises or predictions by a court regarding the likelihood of prosecution raises serious concerns about separation of powers because the decision to prosecute rests solely with the executive branch.

Incriminating Documents and Non-Testimonial Acts

The Fifth Amendment does not shield a person from being compelled to provide documents that may contain incriminating information unless creating the documents was compelled by the government. Its protection likewise does not extend to compelled acts that are not “testimonial” — ie, where the act does not imply a fact or belief — even if performing the act provides incriminating evidence. In our press release scenario, everyone present may be required to provide a voice recording to match comments captured on tape and a handwriting sample to compare with revisions on the press release, even though this evidence may be used against them.

The Fifth Amendment may, however, sometimes cover documents. When producing documents makes use of mental processes, the act of production has a testimonial aspect. Identifying and assembling documents the witness believes are responsive to a “fishing expedition” subpoena is “like telling an inquisitor the combination of a wall safe, not like being forced to surrender the key to a strongbox.” United States v. Hubbell, 530 U.S. 27, 43 (2000). By producing documents in response to a subpoena, a witness is admitting, in effect, that the called-for documents exist, that they were in her possession or control, and that they are authentic. Id. at 36. If such admissions might provide a link in the chain of incriminating evidence, the witness may assert a Fifth Amendment privilege on the act of production. Although corporations and partnerships do not enjoy Fifth Amendment protections, see Braswell v. United States, 487 U.S. 99 (1998) and Bellis v. United States, 417 U.S. 85 (1974), a sole proprietor may refuse to produce documents if he can “show that his act of production would entail testimonial self-incrimination.” United States v. Doe, 465 U.S. 605 (1984).

A witness may be compelled to testify or produce documents despite Fifth Amendment privilege if he has been granted immunity from prosecution. So-called “use and derivative use” immunity, embodied in 18 U.S.C. 6002, is co-extensive with Fifth Amendment protections. When granted, nothing the witness provides can be used against him either as direct evidence or as part of an investigation to lead the authorities to other evidence. If a defendant can demonstrate that he previously testified under a grant of immunity on a matter related to his prosecution, the prosecution bears the burden of showing an independent source for all of its evidence and that none is tainted by the previous testimony. If documents were produced under a grant of immunity, use and derivative use immunity would prevent prosecution for crimes previously unknown to the government that were revealed by the documents — even if the government does not use the documents to prove its case at trial.

Careful anticipation of innocent answers and testimonial acts that may ensnare a client in criminal liability will allow a defense attorney to provide the strongest protection against Justice Field's “cruel trilemma.” Today's cruelties, however, are more than three. Now the prosecution expects companies to fire employees who assert their Fifth Amendment rights and sometimes considers a company uncooperative if it provides its employees with separate counsel — a cruel polylemma for corporate employees called to testify.

The Fifth Amendment's protection against self-incrimination is one of the foundational rights of the America justice system. It provides that “no person … shall be compelled in any criminal case to be a witness against himself.” It protects witnesses from what Justice Field called the “cruel trilemma of self-accusation, perjury, or contempt.” Brown v. Walker , 161 U.S. 591, 637 (1896) (Field, J., dissenting). In this post-Enron era of corporate prosecutions, it is critical that corporate insiders understand the scope of the Fifth Amendment's protection.

Internal Corporate Events

In today's world of real-time investigations into corporate fraud, the government often seeks documents and testimony related to internal corporate events as they occur. Consider a company that discovers reason to believe its finance department is cooking the books. The company hires outside legal counsel and prepares a press release announcing that the law firm will conduct an internal investigation. Upon leaving the meeting at which the press release was drafted, employees may find waiting in their offices messages from assistant U.S. Attorneys wanting to interview them about the meeting. Shortly after the meeting, the company may be served with a subpoena requesting all drafts of the press release. At this early stage of investigation, it is important that attorneys counsel their clients regarding the potential answers and acts that are covered by the Fifth Amendment.

Keep in mind that Fifth Amendment protections are available to the innocent as well as the guilty. As the Supreme Court has said, its basic function is to protect innocent individuals who otherwise might be ensnared by ambiguous circumstances. Grunewald v. United States , 353 U.S. 391, 421 (1957). Even the “truthful responses of an innocent witness” may provide the government with “incriminating evidence from the speaker's own mouth.” Ohio v. Reiner , 532 U.S. 17, 21 (2001).

At its most basic level, the Fifth Amendment offers clients protection against being compelled to provide information that directly supports their own conviction. It also protects clients from being compelled to provide information that could be used as a link in the chain of evidence to convict them. It's easy for a witness and her counsel to think of the Fifth Amendment when the answer to a question would directly inculpate the witness. It's a lot harder to guess which innocent answers may be links in a chain of inculpating evidence.

A typical link-in-the-chain response involves establishing either a witness's presence at the scene of the crime, or her opportunity to commit the crime. Suppose, in the investigation into the preparation of a company's press release, the U.S. Attorney's office does not find what it expected in the documents produced in response to the subpoena and opens an investigation into whether the company obstructed justice by destroying various drafts. Any employee who testifies to using the company's shredding machine, even for the perfectly legitimate reason of shredding his own credit card bills, may be providing the government a link in a chain of evidence against him.

Aside from providing evidence of an employee's opportunity to commit the crime under investigation, routine questions may reveal other areas of criminal conduct. For example, an employee may be called upon to testify before the SEC about his employer's usual practice in preparing press releases. A response to the seemingly innocuous introductory question “What is your occupation?” may provide a link in the chain of evidence against the witness who must admit working for a company under investigation. If the employee has not paid taxes on his salary from the company, the response would incriminate the witness on a matter not yet under investigation. Because the incriminating nature of the response called for often is not apparent on the face of the question, prudence generally dictates asserting the privilege for fear of the unknown. In this situation, the burden of demonstrating the availability of the privilege shifts to the witness. (In many situations, simply articulating the bases for her fear will require a witness to incriminate herself. When this situation arises, it is best to request that the court hear the witness's fears in camera.)

Witnesses are not required to prove that they will be prosecuted based on their answers or that their answers will provide a link in a chain of evidence against them. They merely are required to demonstrate that their fear of incrimination is reasonable. Courts variously use phrases such “not remote,” “not imaginary,” or of “not unsubstantial character” to describe fears deemed reasonable. The inquiry focuses on whether the potential response is incriminating, not on whether the government is likely to prosecute the witness. See Fisher v. I.R.S. , 905 F.2d 645, 649 (2d. Cir. 1990). Indeed, any promises or predictions by a court regarding the likelihood of prosecution raises serious concerns about separation of powers because the decision to prosecute rests solely with the executive branch.

Incriminating Documents and Non-Testimonial Acts

The Fifth Amendment does not shield a person from being compelled to provide documents that may contain incriminating information unless creating the documents was compelled by the government. Its protection likewise does not extend to compelled acts that are not “testimonial” — ie, where the act does not imply a fact or belief — even if performing the act provides incriminating evidence. In our press release scenario, everyone present may be required to provide a voice recording to match comments captured on tape and a handwriting sample to compare with revisions on the press release, even though this evidence may be used against them.

The Fifth Amendment may, however, sometimes cover documents. When producing documents makes use of mental processes, the act of production has a testimonial aspect. Identifying and assembling documents the witness believes are responsive to a “fishing expedition” subpoena is “like telling an inquisitor the combination of a wall safe, not like being forced to surrender the key to a strongbox.” United States v. Hubbell , 530 U.S. 27, 43 (2000). By producing documents in response to a subpoena, a witness is admitting, in effect, that the called-for documents exist, that they were in her possession or control, and that they are authentic. Id. at 36. If such admissions might provide a link in the chain of incriminating evidence, the witness may assert a Fifth Amendment privilege on the act of production. Although corporations and partnerships do not enjoy Fifth Amendment protections, see Braswell v. United States , 487 U.S. 99 (1998) and Bellis v. United States , 417 U.S. 85 (1974), a sole proprietor may refuse to produce documents if he can “show that his act of production would entail testimonial self-incrimination.” United States v. Doe , 465 U.S. 605 (1984).

A witness may be compelled to testify or produce documents despite Fifth Amendment privilege if he has been granted immunity from prosecution. So-called “use and derivative use” immunity, embodied in 18 U.S.C. 6002, is co-extensive with Fifth Amendment protections. When granted, nothing the witness provides can be used against him either as direct evidence or as part of an investigation to lead the authorities to other evidence. If a defendant can demonstrate that he previously testified under a grant of immunity on a matter related to his prosecution, the prosecution bears the burden of showing an independent source for all of its evidence and that none is tainted by the previous testimony. If documents were produced under a grant of immunity, use and derivative use immunity would prevent prosecution for crimes previously unknown to the government that were revealed by the documents — even if the government does not use the documents to prove its case at trial.

Careful anticipation of innocent answers and testimonial acts that may ensnare a client in criminal liability will allow a defense attorney to provide the strongest protection against Justice Field's “cruel trilemma.” Today's cruelties, however, are more than three. Now the prosecution expects companies to fire employees who assert their Fifth Amendment rights and sometimes considers a company uncooperative if it provides its employees with separate counsel — a cruel polylemma for corporate employees called to testify.