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The Arrival of Justice Gorsuch May Bring Opportunity to Reform the Collective Entity Doctrine
A little over 100 years ago, the Supreme Court declined to extend the Fifth Amendment privilege against self-incrimination to corporations responding to grand jury subpoenas for documents, establishing what has been termed the “collective entity doctrine.” Hale v. Henkel, 201 U.S. 43, 74-76 (1906) (corporate officer, who had been immunized in his individual capacity, attempted to assert Fifth Amendment right on behalf of his employer). Some Justices have expressed discomfort with the application of the collective entity doctrine to small corporations responding to grand jury subpoenas, and recent decisions by the Court have extended First Amendment rights to corporations that had previously been limited to individuals. These developments suggest that the Court, particularly with the arrival of Justice Neil M. Gorsuch, might be receptive to reconsidering the scope of the collective entity doctrine, a rule whose principal virtue seems to be that it is a bright-line, particularly in the context of small, closely-held corporations.
The Collective Entity Doctrine
From its inception, the collective entity doctrine has been premised on two considerations: first, the notion that only natural persons can “testify” within the meaning of the Fifth Amendment's self-incrimination privilege; and second, the fear that prosecuting corporations or other artificial entities would be all but impossible if they could claim the privilege in response to document subpoenas. See Wilson v. United States, 221 U.S. 361, 383-84 (1911); Hale v. Henkel, 201 U.S. 43, 74 (1906). Over the course of the 20th century, the Court expanded the doctrine, first by holding that corporate officers cannot invoke their personal self-incrimination privilege to avoid turning over corporate documents in their possession. Wilson, 221 U.S. at 379-80.
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