Who can assert the privilege against self-incrimination?

Question 1

Fisher v. United States (SCOTUS 1976)

Answer 1

This case held that the privilege against self-incrimination is an individual right. Therefore, an attorney cannot assert this right on behalf of a client. An attorney must hand over evidence that may incriminate their client.

This case also held that the 5th amendment does not protect privacy interests, so a person cannot invoke the 5th amendment to claim that they do not have to share information that they have a privacy interest in.

Question 2

Do law firm partners have to provide evidence that may incriminate their co-partners?

Answer 2

Yes. Bellis.

Question 3

Does a sole proprietorship have to hand over evidence that may incriminate the business?

Answer 3

No, because a sole proprietorship is not considered distinct from the individual. Doe.

Question 4

Does a corporation have to hand over evidence that may incriminate the corporation?

Answer 4

Yes, even if a corporation is run by a single person, it is considered wholly distinct from the individual. Braswell.

Question 5

Can a business be protected by the 5th amendment?

Answer 5

This depends. The more the business resembles a natural person the more likely it is that they can be protected from self-incrimination by the 5th amendment. Partnerships and corporations are not protected. Sole proprietorships are.

Question 6

U.S. v. Doe (SCOTUS 1984)

Answer 6

This case held that a sole proprietorship is protected against self-incrimination by the 5th amendment. (Remember, documents that are voluntarily created still aren’t protected, but there may also be act of production privilege).