Braswell v. United States, 487 U.S.

99 (1988) Braswell is the sole shareholder and officer for two companies buying and selling timber, land, oil interests, and machinery. The only directors of the companies were his wife and mother. Braswell was investigated and his business records subpoenaed in Federal Court. Braswell refused to hand over his records stating that because he is the sole shareholder in the businesses, the businesses were like a persons alter ego, therefore the Fifth Amendment should safeguard and relate to him not incriminate himself and hand over his records (Melvin, 2011). The Supreme Court ruled against Braswell and still requested he submit the records, because an officer or employee who acts on behalf of the business is exempt from protection from the Fifth Amendment. The actions a person takes while maintaining records for a company is not an individual undertaking, but of the business (Melvin, 2011). Fifth Amendment on recognition as a legal person Courts recognize that corporations exist as a separate legal person for the First Amendment purposes (Melvin, 2011, p. 554). The Model Penal Code covers criminal liability for business entities, depending on the circumstances. In the Braswell case, Braswell refused to turn over documents requested by the Federal authorities; his claim was the Fifth Amendment right against self-incrimination (Melvin, 2011, p. 569). The U.S. Supreme Court ruled against Braswell because when an employer acts as a records custodian for the company, the person is no longer acting as a private individual but as a business (Melvin, 2011, p. 569). He Fifth Amendment would not apply in this case as the business owner and officer, Braswell acted separate from his personal life as this was a business and was not safeguarded under selfincrimination protections (Melvin, 2011, p. 569).

The reasoning corporations are recognized as legal a person is for purposes of the First Amendment and not protected under the Fifth Amendment is controversial. The controversy is that although a corporation is not a human, corporations are formed by individual humans and therefore should share the same rights as individual humans. Some argue that corporations are individuals who do not stop using their constitutional rights when they walk into the building, therefore they should not be stripped of their constitutional rights. On the other hand, without these government regulations, how corporations conduct their business may affect the public in a negative way. For instance, in the Braswell case, if he were committing a white-collar crime and refusing to hand over his financial documents, he could have been taking advantage of the public without anyone ever discovering the crime. Sole proprietorship vs. Corporation If Braswells company was a sole proprietorship he would have Fifth Amendment protection because only one person can be a sole proprietor. The Fifth amendment provides that no person shall be compelled in any criminal case to be a witness against himself (Melvin, 2011, p. 567). If the company were a sole proprietorship Braswell could use the protection from the Fifth Amendment so he would not incriminate himself. Unfortunately, Braswell was a shareholder, making his company a corporation he is not allowed the safety of the Fifth Amendment. Operating From Home Even if Braswell was operating his business from his place of residence, he is still operating a business and keeping records. Prosecution should still apply to the business. Many businesses are run from homes and require a person to maintain business insurance as well as keep records of the financial aspects of the business. A business run from the home must pay

taxes. People who run a business from their home are required to hold credentials and licenses to run their business. Taxes are a good example. Many people run tax businesses from their private residence are required to maintain a license, insurance, and keep records. If Braswell was to run his businesses from his home he would also be required to maintain his licenses, insurance, and record-keeping for his business. The situation does not change because that the business is conducting the brokering of timber, land, oil interests, and machinery (Melvin, 2011, p. 569). Conclusion A businesss protections under the Constitution are different from an individual persons protections. The Constitution was designed to protect individual rights, which is part of the reason that the Fifth Amendment does not reach out very far to businesses. Whether that business be a business partnership, or sole proprietorship, there are a large part of business records that would not be protected under the Fifth Amendment. In the case of Braswell v. United States, 487 U.S. 99 (1988), Braswells corporation had to give up the business documents because it was considered a whole separate entity from Braswell himself.

Reference Melvin, S. P. (2011). The legal environment of business: A managerial approach: Theory to practice. New York, NY: McGraw-Hill/Irwin.