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

BRASWELL v. UNITED STATES 487 U.S. 99 (1988)

Because the Fifth Amendment's right against self-incrimination is a personal one that can be exercised only by natural persons, the custodian of a corporation's records may not invoke this right. The contents of corporate records are not privileged either. In this case, however, Braswell, who had been subpoenaed to produce the corporation's records, was its sole shareholder. He claimed that the production of the records, under compulsion, forced him to incriminate himself. Had he been the sole proprietor of a business, the Court would have agreed. But because he had incorporated, he lost the protection of the Fifth Amendment.

Four dissenters strongly maintained that the Court majority, by splitting hairs, had ignored realities. The Court used the fiction that the government did not seek the personal incrimination of Braswell, when it forced him as the head of his solely owned corporation to produce the records. This had the effect of giving the government the evidence needed to convict him. The majority openly conceded that to hold otherwise would hurt the government's efforts to prosecute white collar crime.

Leonard W. Levy

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