Part I of this article series explored the legal basics of how the Fifth Amendment applies in the corporate context. Now we’ll explore five cutting-edge Fifth Amendment issues affecting corporate criminal investigations—triggered by technological change and the rise of cross-border investigations.

  • Former versus current: Can former employees invoke the Fifth to refuse to turn over corporate records?

As we explored in Part I, the law treats current corporate employees as “custodians” who cannot invoke the Fifth to refuse to turn over corporate records in their possession, even if incriminating. But what about former employees who still possess corporate records—can they invoke the Fifth?