Truth or Consequences: The Dilemma of Asserting the Fifth Amendment Privilege Against Self-Incrimination in Bankruptcy Proceedings

This article discusses both the manner in which issues regarding the Fifth Amendment privilege against self-incrimination may arise in bankruptcy cases and the many potential consequences of asserting the privilege. Parts II and III provide a general overview of the bankruptcy process and the Fifth Amendment, respectively. Part IV examines whether and to what extent the privilege against self-incrimination protects corporations and their directors, officers, and shareholders. Part V offers a similar examination of the extent to which the Fifth Amendment protects against the compelled production of documents. Parts VI and VII address the closely related topics of invocation and waiver of the privilege. Part VIII analyzes what may well be the most serious potential consequence of invoking the privilege-the court’s drawing an adverse inference against the individual choosing to remain silent. Part IX analyzes other, at least arguably, less serious potential consequences when the court draws such inferences. Part X discusses the question of whether a bankruptcy court can and should stay bankruptcy proceedings pending the outcome of criminal proceedings against an individual who invokes the privilege against self-incrimination during a bankruptcy proceeding. Finally, Part XI deals with immunity, an often suggested but seldom granted means of resolving the inherent conflict between the individual’s right to remain silent and other parties’ interests in full disclosure