By Hayes Hunt and Jonathan R. Cavalier
Most in-house lawyers, if they're fortunate, haven't bumped up against the Fifth Amendment and its related issues since the bar exam. After all, the so-called "nickel" typically arises solely in the criminal context, and corporations don't have the right to plead the Fifth Amendment at an organizational level. However, with governmental investigations of varying types on the rise, and in-house counsel advising the corporation and preparing witnesses for participation in these investigations, the Fifth Amendment and its protections are an important tool in protecting the company and its employees from self-incrimination.
FIFTH AMENDMENT FUNDAMENTALS
The Fifth Amendment to the U.S. Constitution provides, in relevant part, that "no person ... shall be compelled in any criminal case to be a witness against himself." This privilege against self-incrimination has been defined as the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself or herself. To plead the Fifth, or to "take the nickel," is to refuse to answer a question from a governmental body because the response could provide self-incriminating evidence of an illegal act.
Importantly, the Supreme Court has repeatedly recognized that "a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances," as the court held in Grunewald v. United States, 353 U.S. 391 (1957). The Fifth Amendment is intended to protect "the truthful responses of an innocent witness" where the responses of such a witness might provide the government with "incriminating evidence from the speaker's own mouth," as the court held in Ohio v. Reiner, 532 U.S. 17 (2001). The privilege is thus available to both the innocent and the guilty. Importantly, the privilege protects statements that might incriminate the witness regardless of the likelihood of prosecution; rather, the witness must simply have a reasonable fear that his or her responses might self-incriminate.