Everyone is familiar with the concept that an individual cannot be compelled to testify against himself as embodied in the Fifth Amendment to the U.S. Constitution: "No person . . . shall be compelled in any criminal case to be a witness against himself[.]" One would assume that the privilege against self-incrimination would extend to other "persons" under the law, such as corporations. However, it is well-settled law that entities (both business and social) do not have any Fifth Amendment privileges against self-incrimination.
In 1906, the U.S. Supreme Court first addressed the issue of the privilege against self-incrimination and its applicability to corporations.1 In Hale, the Court addressed an antitrust investigation where a grand jury subpoena was served upon the secretary and treasurer of the company. The corporate agent appeared but declined to produce the records asserting the corporation's privilege against self-incrimination.
The Supreme Court held that the privilege against self-incrimination was a personal and not a corporate right, and ordered production of the documents. The Court reasoned that the privilege cannot be asserted to protect the rights of another, therefore, the witness could not assert a privilege on behalf of the corporation.2
The "entity rule" has been expanded to hold that individual representatives of an entity, as well as the entity itself, cannot refuse to produce entity documents on Fifth Amendment grounds. In Wilson v. U.S.,3 the Court held that the entity rule prevents an individual from asserting his Fifth Amendment privilege to avoid producing entity documents, regardless of how personally incriminating the documents might be.
Courts reason that individuals, when acting as representatives of a collective group, cannot be said to be exercising their personal rights and duties nor to be entitled to their purely personal privileges. Rather, they assume the rights, duties and privileges of the artificial entity or association of which they are agents or officers and they are bound by its obligations. In their official capacity, therefore, they have no privilege against self-incrimination.4
The entity rule has been applied in the context of labor unions,5 defunct partnerships,6 unincorporated associations,7 dissolved corporations,8 single stockholder corporations,9 professional corporations,10 tenancies in common11 and trusts.12
The Washington constitutional privilege against self-incrimination is co-extensive with that provided in the U.S. Constitution.13 Therefore, Article 1, Section 9 of the state constitution provides no protection for a corporation against self-incrimination.14
Matthew King is a Seattle attorney whose practice focuses on environmental, land use, toxic tort and construction litigation. He can be reached at matthewking@abanet.org.
1 Hale v. Henkel, 201 U.S. 43 (1906).
2 Note, however, the government may not use the act of production in proceeding individually against the corporate custodian. Braswell v. United States, 487 U.S. 99 (1988). Cf. George Campbell Painting Corp. v. Reid, 392 U.S. 286 (1968).
3 221 U.S. 361.
4 United States v. White, 322 U.S. 694, 699, 64 S. Ct. 1248, 88 L. Ed. 1542, 152 A.L.R. 1202 (1944); Baltimore & O.R.R. v. ICC, 221 U.S. 612, 622 (1911); Hale v. Henkel, 201 U.S. at 69-70, 74-75.
5 U.S. v. White, 322 U.S. 694 (1944).
6 Bellis v. U.S., 417 I.S. 85 (1974).
7 Rogers v. U.S., 340 U.S. 367 (1951).
8 Wheeler v. U.S., 226 U.S. 478 (1913).
9 Grant v. U.S., 227 U.S. 74 (1913).
10 U.S. v. Radetsky, 535 F.2d 556 (10th Cir.), cert. den., 429 U.S. 820 (1976).
11 In re. Grand Jury Proceedings (Shiffman), 576 F.2d 703 (6th Cir.), cert. den., 439 U.S. 830 (1978).
12 U.S. v. Harrison, 653 F.2d 359 (8th Cir. 1981) (family trust); In Re Grand Jury Proceedings (Hutchinson), 633 F.2d 754 (9th Cir. 1980) (trust).
13 State v. Moore, 79 Wn.2d 51, 57, 483 P.2d 630 (1971).
14 State v. Mecca Twin Theater & Film Exchange, 87 Wn.2d 87, 507 P.2d 1165 (1973).
