Is It Time to Revisit the Corporate Privilege Against Compelled Self-Incrimination?

The Champion

September/October 2019

In this article, Mark Rochon, Addy Schmitt, and Ian Herbert review the issue of a corporation's right against compelled self-incrimination and discuss how the 1906 Supreme Court ruling in Hale v. Henkel that determined an individual could not assert 5th Amendment privilege on behalf of a corporation is no longer consistent with how the current Court, and society, view both corporations and their constitutional rights.

"While the Supreme Court has not looked at the issue of corporate assertion of the right against self-incrimination in decades, the Court has been otherwise busy redrawing the landscape for other corporate constitutional rights," the authors wrote. "Significantly, with the exception of the protection against self-incrimination, the courts have now held, through various cases, that each of the protections of the Fifth Amendment, as well as the Fourteenth Amendment's due process and equal protection provisions, extends to corporations. With these decisions, the Supreme Court has eroded—if not directly contradicted—the basis upon which Hale was decided. As a result, the reasonable practitioner ought to wonder when, not whether, the Supreme Court will revisit Hale and its progeny and find that corporations cannot be compelled to incriminate themselves."