Corporations are people? Not when it comes to the privilege against self-incrimination.

The Fifth Amendment to the United States Constitution includes, within its scope of personal rights, an affirmation that no person “shall be compelled in any criminal case to be a witness against himself”.  Similarly, Article 12 of the Massachusetts Declaration of Rights guarantees that no person may “be compelled to accuse, or furnish evidence against himself”.  These constitutional protections, which are commonly illustrated by a suspect’s “right to remain silent”, are vital to striking the appropriate balance between governmental power and individual liberty.    

As a general rule, businesspeople pursue their commercial endeavors through an incorporated entity, because doing so protects them from personal liability for claims asserted against the corporation.  This protection generally applies even to small, or closely-held, corporations involving a single owner.  Consequently, and while some exceptions apply, an individual who forms a corporation in which he is the sole owner, officer, and employee is shielded from personal financial liability for debts or other liabilities incurred by the corporation.  Within this context, the corporation typically is regarded as a separate legal “person” that possesses certain legal rights, such as the right to enter into contracts and to own property, while shielding the corporation’s owner(s) and employee(s) from personal financial liability for the corporation’s debts and liabilities.    

Nevertheless, this general principle of separate corporate “personhood” is subject to a very important exception – the corporation cannot refuse to turn over documents or other information by relying on the Fifth Amendment or Article 12, even if the requested documents or other information will have the effect of criminally incriminating the corporation and its owner(s), officer(s), and/or employee(s).  As the Supreme Court explained in a 1988 case captioned Braswell v. United States, the Fifth Amendment privilege against self-incrimination applies only to natural persons and protects only private papers – consequently, since corporations are not “natural persons” and corporate records are not private, a corporation must produce its properly-demanded records, even if the records will criminally incriminate the corporation and its owner(s), officer(s), and/or employee(s).  Moreover, even if the government’s demand for corporate records is directed to an individual representative of the corporation and that individual representative may be personally incriminated by the corporate records, the Fifth Amendment still does not shield the individual representative from producing the corporate records. Further, this absence of Fifth Amendment protection extends to corporations of all sizes, even closely-held corporations with a single shareholder; in other words, if the corporation consists of only a single owner, officer, and employee, that single individual may be compelled to produce corporate documents that will directly, and criminally, incriminate the individual.

In Massachusetts, the Supreme Judicial Court similarly has ruled that Article 12 of the Massachusetts Declaration of Rights does not shield a corporation from producing properly-demanded corporate records, even if the corporate records will criminally incriminate the corporation or its owner(s), officer(s), or employee(s).  With regard to individual corporate representatives who are served with a demand to produce corporate records that could incriminate the individual representative, the Supreme Judicial Court has ruled that Article 12 protects the individual from being forced to produce the corporate documents, but this protection is largely illusory – more specifically, the Supreme Judicial Court has ruled that, under such circumstances, the corporation must appoint another representative who will not be incriminated by producing the requested corporate records.  In any event, the content of the corporate records may be used to prosecute the corporation and any of its implicated owner(s), officer(s), and/or employee(s), even the individual representative who successfully avoided producing the records pursuant to Article 12.
In sum, once a business enterprise is incorporated, neither the Fifth Amendment nor Article 12 may be relied upon to protect the corporation and its owner(s), officer(s), and/or employee(s) from being forced to produce incriminating corporate records.  

Ironically, if an individual elects to run his business as a sole proprietor (as opposed to forming a corporation that will protect him from personal financial liability for corporate debts, as described above), he may have a greater degree of protection against being forced to produce potentially incriminating business records.  More specifically, a sole proprietor may be able to resist a subpoena for business records, if he can establish that, by virtue of producing the records, he will incriminate himself by admitting the records exist, that the records are in his possession and/or control, and that the records are authentic.

Supreme Judicial Court Rules Medical Records, By Themselves, Do Not Prove Assault and Battery Causing "Serious Bodily Injury"

In a potentially wide-ranging decision captioned Commonwealth v. Scott, 464 Mass. 355 (2013), the Supreme Judicial Court recently reversed a defendant’s conviction for assault and battery causing serious bodily injury because the Commonwealth failed to sustain its burden of proof.  More specifically, the Commonwealth relied solely upon hospital records that indicated the alleged victim suffered a lacerated liver due to an assault by the defendant, but the Commonwealth did not introduce any medical testimony that would allow the jury to rationally find that this lacerated liver constituted a “serious bodily injury” as defined by the applicable statute.  The crime of assault and battery causing serious bodily injury is governed by M.G.L. c. 265, §13A, which defines “serious bodily injury” as “bodily injury that results in a permanent disfigurement, loss or impairment of a bodily function, limb, or organ, or a substantial risk of death”.  

In Scott, the defendant was accused of repeatedly assaulting the alleged victim over a period of approximately 12 hours.  According to hospital medical records submitted by the Commonwealth at trial, the alleged victim suffered a lacerated liver as a result of this purported assault.  Significantly, the Commonwealth did not introduce any trial testimony from a medical expert that further explained the nature and extent of the alleged victim’s lacerated liver.  Nevertheless, the Commonwealth argued, at trial, that this lacerated liver constituted a “serious bodily injury”.  The jury agreed with the Commonwealth, and found the defendant guilty of assault and battery causing serious bodily injury (among other counts).  
The defendant subsequently appealed his conviction for assault and battery causing serious bodily injury, on the grounds that the hospital records submitted into evidence by the Commonwealth do not, without more, support a verdict that he caused the alleged victim to suffer a “serious bodily injury”.  

During the course of its analysis, the Supreme Judicial Court first noted that, given the statutory definition of “serious bodily injury” found at M.G.L. c. 265, §13A (as quoted above), the Commonwealth could prove “serious bodily injury” by presenting evidence that the bodily injury resulted in either (1) a permanent disfigurement, (2) a loss or impairment of a bodily function, limb, or organ, or (3) a substantial risk of death.  Next, the Court noted that, at trial in Scott, the Commonwealth argued the lacerated liver constituted an impairment of an organ.

The Court then held that, within the context of M.G.L. c. 265, §13A, “impairment” of an organ “occurs when damage to the structure of the organ is significant enough to compromise its ability to perform its function in the victim’s body”.  Finally, the Court ruled that, although the hospital records did indicate the alleged victim suffered a lacerated liver, the hospital records were not sufficient to prove that this laceration constituted an “impairment” of the liver.  More specifically, the Court held that a juror could not rationally find, in the absence of medical testimony, that the victim’s lacerated liver constituted an “impairment” of the liver.  Stated differently, the hospital records, standing alone, did not establish that the laceration was “significant enough to compromise [the liver’s] ability to perform its function”.

In closing, the Court stated: “While medical testimony may not be required in every instance to establish that a victim has suffered serious injury resulting in impairment to an organ, the Commonwealth bears the burden of establishing the severity of an injury through its impact on the structure of the victim’s organ and its consequent effect on the ability of the organ to perform its usual function.  Medical records containing technical terminology that require jurors to speculate on the meaning of key terms will be insufficient, without more, to meet this burden.”