During the defendant’s tenure as a law partner in Bellis, Kolsby & Wolf, the partnership’s financial records were maintained in his office. After the partnership dissolved, the defendant left to join another law firm. The partnership records remained in the partnership’s previous location for approximately three years. Later, the defendant’s secretary, acting at the defendant’s request, removed the records and brought them to his new office. Approximately two months later, the defendant was subpoenaed by a grand jury and ordered to appear and testify and to bring with him “all partnership records currently in your possession for the partnership of Bellis, Kolsby & Wolf for the years 1968 and 1969.” The defendant refused to produce the partnership’s records, claiming his Fifth Amendment right against self-incrimination.
Whether a defendant who holds partnership records in a representative capacity has a Fifth Amendment privilege against self-incrimination to avoid producing those partnership records, where the records might incriminate him personally?
No. The self-incrimination clause is a personal right, not one belonging to an artificial entity such as a partnership.
“It has long been established that the Fifth Amendment privilege against compulsory selfincrimination protects an individual from compelled production of his personal papers and effects as well as compelled oral testimony.” This protection may extend to the business records of a sole proprietor or sole practitioner. However, the Fifth Amendment right against compulsory self-incrimination is a purely private right that cannot be invoked by any artificial entity, such as a corporation or a partnership. “It follows that an individual acting in his official capacity on behalf of the organization may likewise not take advantage of his personal privilege.” Instead, “the papers and effects which the privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity.” This rule applies even where the records sought might personally incriminate the individual who holds them provided that the records sought are those of the organization and not the individual. Here, it was clear, based on the nature of the records sought, that they constituted records of the partnership, not the personal records of the defendant. The defendant had no ownership rights in these records, and could not use the records for anything other than partnership purposes.
417 U.S. 85, 94 S. Ct. 2179 (1974)