It’s unethical for a prosecutor to put a witness on the stand in a criminal trial when he or she knows in advance that the witness is going to take the Fifth Amendment and refuse to testify at all.
Legal ethics authorities reason that the only effect of that kind of testimony is not to bring out relevant evidence but simply to prejudice the jury against the witness. After all, the jury would conclude, if the witness didn’t have something to hide, why did he or she take the Fifth? It’s a violation of the witness’s constitutional rights to permit that kind of inference to be made by a jury.
What about testimony before a congressional committee? Can a lawyer for a committee haul a witness before the panel, knowing that the witness will claim the Fifth Amendment?
In Washington, D.C., where congressional probes often go on at the same time as parallel criminal prosecutions, that can be a key question.
The Legal Ethics Committee of the D.C. Bar has issued an opinion that opens the door considerably wider than before for congressional staff lawyers to do this.
In an opinion issued in January, the committee wrote that an earlier opinion on the subject that it wrote in 1977 should be interpreted in a limited manner. At that time, it wrote that it is improper to call a witness to a congressional hearing “when it is known in advance that no information will be obtained and the sole effect of the summons will be to pillory the witness.”
The new opinion makes it clear that “there may be legitimate reasons for a congressional committee to summon a witness who expresses an intention to assert her privilege against self-incrimination.” Thus, the bar committee found that the Rules of Professional Conduct are violated only if “there is no substantial purpose in calling a witness other than embarrassment, burden, or delay.”
There’s no blanket rule that this type of testimony is prohibited; it is unethical, the committee wrote, only when summoning the witness “will provide no information to the committee and (2) is intended merely to degrade a witness.”
Since a congressional committee lawyer can almost always think of some reason to call a witness other than embarrassment, burden, or delay, the new opinion makes it significantly more likely that congressional panels will try to take this step. We suggest that defense lawyers need to be aware of this tactic. If it won’t necessarily convict their client in court, it can go a long way towards convicting the client in the court of public opinion.
Is the Second Circuit Ready to Recognize a Limited Fifth Amendment Privilege for One Person Corporations?
On Monday, November 30, 2009, oral argument will be held in the United States Court of Appeals for the Second Circuit before Justices Raggi, McLaughlin, and Walker in the matter of In re: Grand Jury Subpoena Account Services v. U.S. Attorney’s Office, No.: 09-3561-cv. This matter is being heard on appeal from the United States District Court for the District of New York [hereinafter “District Court”]. The question before the Second Circuit is whether the Fifth Amendment protection against self-incrimination applies in the context of a one-man corporation, where the sole employee, officer, and shareholder of a corporation is being compelled by subpoena to produce corporate documents and testify regarding same.
This issue was addressed, but left unanswered, in a footnote in the Supreme Court case of Braswell v. United States, 487 U.S. 99 (1988). There, the Court held that, because a collective entity does not enjoy Fifth Amendment protections, an individual officer acting in a representative capacity for the collective entity can be compelled to produce business records, even if those records incriminate him. In footnote 11 of its opinion, however, the Court reserved judgment on the issue of whether the rationale supporting compelling a custodian to produce corporate records extends to a situation where the custodian is able to establish, by showing that he is the sole employee and officer of the corporation, that the jury would inevitably conclude that he produced the records.
Judge Swain, writing on behalf of the District Court, described the holding in Braswell as a “broadly stated categorical rule” that “[a] custodian may not resist a subpoena for corporate records on Fifth Amendment grounds.” The District Court further opined that “it makes little sense to read footnote eleven as calling into question the scope of a rule expressed categorically and supported by detailed analysis several times within the very same opinion.” Thus, although acknowledging Braswell’s footnote eleven, the District Court did not recognize a potential exception to what it described as the “broad,” general rule.
Monday’s hearing will determine whether the Second Circuit will find that the Supreme Court expressly carved out an exception to the “broadly stated categorical rule” and whether it will extend Fifth Amendment protections to a sole employee acting in a representative capacity on behalf of a one-man corporation—a situation where there is no real distinction between the individual and the corporation itself.