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REMEDY FOR FIFTH AMENDMENT VIOLATION OF ILLEGALLY OBTAINED CONFESSION IS MOTION TO SUPPRESS AND HEARING

A Motion to Suppress is also the proper remedy where evidence has been obtained in violation of the Fifth Amendment (e.g., a confession which was illegally obtained or other evidence obtained as a result of that illegally obtained confession). Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880 (1981); Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830 (1983); Smith v. Katzenbach, 351 F.2d 810 (D.C. Cir. 1965); Grant v. U.S., 282 F.2d 165 (2d Cir. 1960).

However, an accused corporation and/or the individual who is custodian of the corporate records cannot assert a Fifth Amendment privilege and thereby escape authenticating the records by the act of production or personal incrimination. Braswell v. U.S., 487 U.S. 99, 101 L.Ed.2d 98, 108 S.Ct. 2284 (1988).

“We note further that recognizing a Fifth Amendment privilege on behalf of the records custodians of collective entities would have a detrimental impact on the Government’s efforts to prosecute “white- collar crime”, one of the most serious problems confronting law enforcement authorities. ‘The greater portion of evidence of wrongdoing by an organization or its representatives is usually found in the official records and documents of that organization. Were the cloak of the privilege to be thrown around these impersonal records and documents, effective enforcement of many federal and state laws would be impossible.’ If custodians could assert a privilege, authorities would be stymied not only in their enforcement efforts against those individuals but also in their prosecutions of organizations [T]he Court observed: ‘In view of the inescapable fact that an artificial entity can only act to produce its records through its individual officers or agents, recognition of the individual’s claim of privilege with respect to the financial records of the organization would substantially undermine the unchallenged rule that the organization itself is not entitled to claim any Fifth Amendment privilege, and largely frustrate legitimate governmental regulation of such organizations.” Braswell, 487 U.S. 99, 101 L.Ed.2d 98, 108 S.Ct. 2284 (1988) [citations and footnotes omitted].

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