Legal Question in Credit and Debt Law in New York

Re: ny state atourney general

Although the U.S. Constitution's Fifth Amendment privilege against compelled self-incrimination generally protects a person against being "compelled in any criminal case to testify against himself" or herself, the U.S. Supreme Court has held (for example, in Bellis v. Unted States (1974), that the 5th Amendment protection against compelled self-incrimination only protects natural persons, NOT corporations. The "papers and effects which [the 5th amendment] privilege protects must be the private property of the person claimng the[5th amendment] privilege [against self-incrimination]." (Boyd v. United States, 118 US 616).

Therefore, a pivotal issue is: are you a custodian of corporate records and will you be asked to give these corporate records to the attorney general's office? Generally, you would be required to do so, EVEN IF the contents of those records could incriminate you. (HOWEVER, for example, if these corporate records tended to incriminate you, AND they were ALSO in your OWN HANDWRITING, then you MIGHT be able to refuse to give them over under your 5th amendment privilege against self-incrimination).

THIS IS a COMPLEX ISSUE with many details to consider: I suggest that you consult an EXPERIENCED CRIMINAL LAWYER and that you RE-POST this question to the CRIMINAL LAW section of the LAW GURU website.

Therefore : court,prosecutor or attorney general has the following loophole/exception to 5th amendment protection against self-incrimination: a custodian of corporate records can be compelled to produce corporate records EVEN IF the CONTENTs of these CORPORATE RECORDS will INCRIMINATE that custodian. (However, in the 1984 case United States v. Doe, the court ruled that if even the very action of producing those corporate records would be self-incrimination, then, production of those corporate records cannot be compelled without a grant of immmunity.)

In Braswell v. United States (1984), the U.S. Supreme Court, the SupremeCourt reasoned that in producing such corporate records, the custodians were acting as corporate representatives and that, consequently, the government is not allowed to make any "evidentiary use of the 'individual act' against the individual" custodian.

"In their official capacity, [custodians of corporate records], have no privilege against self-incrimantion . . . [T]he official records and documents of the organization that are held by them in a personal capacity annnot be subject of the privilege against self-incrimination, EVEN THOUGH production of the papers might incriminate [these custodians] personally." U.S. Supreme court case; United States v. White, 322 U.S 694 (1944).