Braswell v. United States, 487 U.S. 99 (1988)

The availability of the Fifth Amendment selfincrimination privilege to resist producing documents in response to a subpoena has depended on whether the government sought the records from an individual (or sole proprietorship) or from a larger business organization. In Fisher v. United States, the Supreme Court held that an individual may assert the Fifth Amendment if the act of production of the records would incriminate the person. Randy Braswell, the owner of a business who received a subpoena for its records, sought to apply Fisher’s privilege analysis to a single-shareholder corporation.

The Supreme Court, relying on a consistent line of cases going back to its 1906 decision in Hale v. Henkel, reaffirmed the collective entity doctrine in Braswell v. United States to bar a corporation from asserting the Fifth Amendment to resist production of its records, regardless of the corporation’s size or whether an owner or officer would be incriminated by the documents. The Court noted that allowing a corporation’s representative to assert the self-incrimination privilege ‘‘would have a detrimental impact on the government’s efforts to prosecute’’ white-collar crime, one of the most serious problems confronting law enforcement authorities. The Court further explained that the production of documents by the corporation’s representative could not be used by the government against that person if the government charged that person with an offense in a personal capacity.

The decision to incorporate an enterprise means that it cannot assert the Fifth Amendment privilege to resist a government demand for its records.

PETER J. HENNING

References and Further Reading

• LaFave, Wayne R., Jerold H. Israel, and Nancy J. King. Criminal Procedure. Vol. 3. 2nd ed. St. Paul, MN: Thomson West, 1999
• Mosteller, Robert P., Simplifying Subpoena Law: Taking the Fifth Amendment Seriously, Virginia Law Review 73 (1987): 1:1–110
• Note: Right Against Self-Incrimination—Production of Documents, Harvard Law Review 102(1988): 1:170–80

Cases and Statutes Cited

• Fisher v. United States, 425 U.S. 391 (1976) 
• Hale v. Henkel, 201 U.S. 43 (1906) 

See also Fisher v. United States, 425 U.S. 391 (1976); Grand Jury Investigation and Indictment; Hale v. Henkel, 201 U.S. 43 (1906); Self-Incrimination (V): Historical Background