'No Body to be Kicked or Soul to be Damned': Corporate Claims to the Privilege Against Self-Incrimination

Jan McDonald
1993 Bond Law Review  
The most obvious way for a corporation to resist compulsory production of documents that contain evidence of potential misconduct is to claim that production may tend to incriminate the company. Until recently, it was assumed that corporations were entitled to claim the privilege against self-incrimination; the High Court never having expressed a conclusive opinion on the question. In EPA v Caltex, however, a narrow majority of the Court held that the focus of the privilege is to prevent abuses
more » ... of personal freedoms and individual human rights, and therefore, that the privilege has no application to corporate entities. It also endorsed a wide interpretation of statutory powers to compel production. This note examines the Caltex decision and assesses its implications for white-collar crime investigation and enforcement. No murderer wants to hand her acc~er the wa~wa and smo~ng g~ or the blood-s~ned ~fe. Sensible p~ple ~udge prov~ng ~e pros~ution wi~ ~nhqg evidence ~d gene~y, the law ~ sympa~efic. ~e privilege against self-incrimination protects individuals from facing ~e '"cruel ilemma" of punishment for refusN to testify, punishment for ~uthful tesmmony or N~. The privilege ~ most c~monly ~~ with the right to silence at ~ial, but extends m ~e pr~ucfion of incriminating documenm~ evidence. This is crificN in a business env~onment where co~orations and their d~tors face heavy c~minN penalties for non-compli~ce; ~d where S~te and F~e~l pollution con~ol, ~cupafionN h~th ~d ~e~, co.rations, and ~~ leNslafion provides government au~ofifies wi~ wide ~wers to comN1 pr~ucfion of d~umen~.
doi:10.53300/001c.5246 fatcat:mhgknnh4dzgchef4zwt5n7rmia