Corporations and the Privilege against Self-Incrimination

Stijn Lamberigts is an attorney at Eubelius and member of the Brussels Bar, Belgium.

• 1. Introduction I. Corporate Offenders and Procedural Safeguards II. Corporations, Punitive Cases and the Privilege against Self-Incrimination III. Structure and Methodology 2. The Roots and Historical Rationale(s) of the Privilege against Self-Incrimination I. Nemo Tenetur Prodere Seipsum II. The Oath ex Officio III. Torture IV. Consolidation of the Privilege against Self-Incrimination V. The Missing Piece of the Puzzle? VI. Applying the Historical Rationales to Corporations 3. How Different Are Corporations for the Purpose of the Privilege against Self-Incrimination? I. Corporate Personhood II. (Im)possibility of Exerting Physical or Psychological Pressure on Corporations III. Importance of Documentary Evidence IV. Impossibility of Exercising the Privilege against Self-Incrimination Independently V. Comparable Categories VI. Legitimate Aim VII. Objective Criterion of DistinctionVIII. Suitability and Necessity IX. Proportionality Sensu Stricto 4. Contemporary Rationales of the Privilege against Self-Incrimination I. Protection from Cruel Choices II. The Protection of the Innocent III. The Privilege against Self-Incrimination and the Presumption of Innocence IV. Privacy Protection 5. Self-Incrimination 6. Compulsion I. Compulsion by Public Authorities II. Permitted Compulsion III. Adverse InferencesIV. Private Compulsion 7. The Privilege against Self-Incrimination and Different Types of Evidence I. Oral Statements II. Documentary EvidenceIII. Encrypted Evidence 8. The Applicability of the Privilege against Self-Incrimination Ratione Temporis 9. Waiver of the Privilege against Self-Incrimination 10. Corporations and the Privilege against Self-Incrimination I. (Supra)national Models of Corporate Criminal Liability II. Corporations and the Privilege against Self-Incrimination III. Linking Models of Corporate Criminal Liability to the (Un)availability of a Corporate Privilege against Self-Incrimination IV. The Cooperating Corporation 11. A Proposal for a Balanced Corporate Privilege against Self-Incrimination I. Different Models of a Corporate Privilege against Self-Incrimination II. A Proposal for a Balanced Corporate Privilege against Self-Incrimination 12. Overall Conclusion