Academic journal article The Review of Litigation

Between a Rock and a Hard Place: An Examination of a "Costly" Right to Silence for Corporate Employees in Criminal Investigations

Academic journal article The Review of Litigation

Between a Rock and a Hard Place: An Examination of a "Costly" Right to Silence for Corporate Employees in Criminal Investigations

Article excerpt


You know the employee has to talk to the corporation on pain of dismissal, and you expect the corporation to fire employees who won't speak, so you indirectly force employees to relinquish their Fifth Amendment rights by putting them between a rock and a hard place.1

Although ambiguous questions and answers are the forte of the legal community, this statement to United States Deputy Attorney General James Comey was followed by a rather direct question: "Is that fair?"2 This question and the interview from which it was drawn illustrate a recent trend in corporate and white-collar prosecutions-the use of corporations as investigatory tools against their employees.3 This trend emanates from Department of Justice (DOJ) guidelines regarding criminal investigations of corporate conduct.4 The guidelines list various factors that prosecutors should take into account when deciding whether or not to prosecute a corporation:

[T]he corporation's timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents, including, if necessary, the waiver of corporate attorney-client and work product protection . . . the existence and adequacy of the corporation's compliance program . . . the corporation's remedial actions, including any efforts . . . to replace responsible management, to discipline or terminate wrongdoers, to pay restitution, and to cooperate with the relevant government agencies . . . [and] the adequacy of the prosecution of individuals responsible for the corporation's malfeasance . . . .5

While these are merely some of the factors listed, their import is clear. Corporations either become transparent to government inquiries or suffer prosecution as legal entities. The result is that many corporations choose to waive both attorney-client and work product privileges and to deliver the results of any internal investigations that may have been conducted, all in an attempt to avoid corporate prosecution.6

Much of the legal commentary surrounding corporate criminal liability focuses upon the propriety of forcing corporations to waive attorney-client and work product privileges.7 The question posed to Mr. Comey points out a somewhat more subtle consequence of the DOJ guidelines. Given that corporations are complying with the DOJ, what effect does that compliance have upon the rights of corporate employees, specifically their Fifth Amendment right to silence? An employee, facing the unlikely alliance of her employer with the prosecutor, views the corporate form that is often thought a shield from personal liability, at least for shareholders, as a sword in the hands of the prosecutor. The leverage gained from the corporation's compliance forces the employee to cooperate or risk losing her job.8

Rather than attempting to determine the fairness of placing an employee's job at risk based upon her choice to remain silent during a corporate investigation, this Note will instead focus upon the effect a costly Fifth Amendment right to silence might have upon an employee's response to an internal investigation. The intuitive response to such a right to silence leads to the conclusion that it will create an incentive for a guilty employee to lie to an investigator. According to a recent rational-actor model9 of the Fifth Amendment's consequentialist effect, an increase in lying would injure the guilty as well as the innocent.10 This Note attempts to show that a costly right to silence does not necessarily result in more culpable employees lying to investigators. In fact, a costly right to silence might be a desirable means to ensure employee cooperation, to minimize any hypothetical harm to innocent employees, and to convict culpable employees.

Towards this end, Part II of this Note provides a basic background of the Fifth Amendment's right to silence in the corporate context. Part III describes a rational-actor model of a suspect's choice to invoke the Fifth Amendment in the non-corporate context and explains the possible consequentialist benefits derived from the presence of the right to remain silent. …

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