The Supreme Court has recently ruled that a three-person partnership does not have a fifth amendment privilege with respect to its business records. It would appear from the Court's reasoning that regardless of how small the partnership, individual partners can no longer refuse to produce partnership records which tend to incriminate them, thus leaving the single proprietorship as the only remaining protected business entity. This article will focus on the historical roots of the fifth amendment privilege as it relates to the documents of organized entities and will analyze the reasons for the steady erosion of the privilege which culiminated in the decision in Bellis v. United States, a decision neither logically necessitated by, nor consistent with prior decisions of the Court.
As will be pointed out, a test to determine when the privilege should apply had developed through the case law. This test focused on the degree of personal involvement between the individuals and the organization, rather than on the type of organization involved. Although the test has recently been confounded by the mechanical standard applied in Bellis, it is, in the opinion of the authors, still a viable means of determining the circumstances under which the basic constitutional protection of the fifth amendment will be either granted or denied.
Molinari, John F. and Seligson, Garry Richard
"Bellis v. United States,"
Hofstra Law Review: Vol. 3
, Article 5.
Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol3/iss2/5