Fair enough, it may not be immediately obvious why corporate in-house counsel should care about Fifth Amendment jurisprudence. And yet, now in fact is an excellent time to take stock of the U.S. Constitution’s right against self-incrimination, enshrined in the Fifth Amendment, which declares that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” Why is the timing for review so ripe? Because the Fifth Amendment’s boundaries are being actively tested in ways that impact corporate criminal investigations, with practical consequences for in-house counsel.
- Can corporate employees “take the Fifth” to refuse to give law enforcement their phone passcode?
- Can former employees invoke the Fifth Amendment to refuse to turn over corporate records still in their possession?
- What potential Fifth Amendment violations lurk in cross-border cases, or when U.S. authorities pressure a company counsel on how to conduct its internal investigation?
These are just some of the questions percolating through U.S. courts, and unsurprisingly so. With rapid technological change in how people communicate and the increasingly multi-national nature of investigations, law enforcement strategies for investigating corporate crime have evolved—sparking increased litigation of Fifth Amendment issues. Indeed, in two recent, high-profile U.S. prosecutions relating to the LIBOR controversy, federal courts found Fifth Amendment violations—leading the U.S. Court of Appeals for the Second Circuit, in 2017, to dismiss the government’s prosecution in United States v. Allen, and in May 2019, and prompting sharp criticism of the government by the chief judge of the U.S. District Court for the Southern District of New York, in United States v. Connolly. What this means is that the Fifth Amendment is on the minds of corporate crime prosecutors too.
