ISSUES
The right to remain silent is one of the most cherished and controversial rights that Americans have. The merits of this right have been debated for over two hundred years. Many supporters claim that it is the height of our civilization, and detractors claim that it only benefits the guilty and cannot be justified by a cost-benefit analysis. What has received little attention during this time is whether corporations should have the right to remain silent. An early Supreme Court case established that they do not. This Article asks why corporations do not have this right and whether that should remain true. The piece begins the discussion with an overview of corporate criminal liability, examining how the law treats a corporation that has engaged in illegal activity and what it means to say that a “corporation broke the law” in the first place. The Article then considers the constitutional standing of corporations and discusses the numerous constitutional rights that have been granted to them, followed by an analysis of the Fifth Amendment specifically and the arguments for and against the right to remain silent. The Article especially focuses on one of the more recent arguments in favor of a right to remain silent, namely that counter to the claim that the right only helps the guilty, it may in fact also prevent false convictions of the innocent. With this argument in mind, the piece turns to the ultimate question of whether corporations should have the right to remain silent. After showing that the original case law denying the right lacked substantive basis, the Article demonstrates that what little reasoning supported the denial of the right has been implicitly overruled in recent Supreme Court decisions. The Article concludes that given the unclear justifications for the modern right to remain silent and the applicability of some justifications to corporations, they should either receive the right to remain silent or it should be clearly established what goal the right is accomplishing and why that goal does not apply to corporations.

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