Hale v. Henkel, 201 U.S. 370 (1906)

The Supreme Court established in Hale v. Henkel the power of a federal grand jury investigation into corporate misconduct to require an organization to turn over its records. Hale was an officer of MacAndrews and Forbes Company, one of six companies being investigated for illegal price fixing of tobacco. A federal grand jury subpoena addressed to Hale required him to produce extensive corporate records, and he refused. The Court rejected Hale’s argument that a grand jury cannot compel the production of records without first providing a list of charges being investigated, holding that a grand jury can initiate an investigation of potential crimes on its own volition without identifying the scope of its investigation before examining witnesses and compelling the production of documentary evidence. This broad inquisitorial power permits a grand jury to first investigate misconduct before deciding whether to approve an indictment.

The Court then determined that the Fifth Amendment self-incrimination privilege did not apply to a corporation, rejecting Hale’s privilege claim. Reasoning that the constitutional protection is ‘‘purely personal’’ and cannot be asserted to protect a third person, Hale could not refuse to produce the company’s records on the ground that they would incriminate him. Because a corporation is incorporeal and cannot testify, the Court’s holding in Hale v. Henkel effectively denies to corporations any Fifth Amendment right to refuse to produce records because only individuals can assert the privilege. This was the first step in limiting the scope of protection for documents in Boyd v. United States (1886).

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.

Cases and Statutes Cited

• Boyd v. United States, 116 U.S. 616 (1886)

See also Bellis v. United States, 417 U.S. 85 (1974); Boyd v. United States, 116 U.S. 616 (1886); Grand Jury Investigation and Indictment; Self-Incrimination (V): Historical Background