United States v. Kordel - 397 U.S. 1, 90 S. Ct. 763 (1970)

Rule:

A party's failure at any time to assert the constitutional privilege against self-incrimination leaves him in no position to complain later that he was compelled to give testimony against himself.

Facts:

Upon trial in the United States District Court for the Eastern District of Michigan, the respondents, who were the president and the vice-president of a corporation, were convicted, along with the corporation, for violations of the Federal Food, Drug, and Cosmetic Act. Prior to the criminal prosecution, the government had instituted civil condemnation proceedings under the Act and had served interrogatories on the corporation to obtain evidence as to certain of its products. Upon being notified by the Food and Drug Administration that criminal proceedings were contemplated against the corporation and its officers, the corporation sought to stay the civil action, or extend the time for answering the interrogatories until after disposition of any criminal proceedings, on the ground that otherwise the government would improperly obtain evidence for the criminal prosecution by the use of civil discovery proceedings, no claim of the Fifth Amendment privilege against self-incrimination having been asserted with respect to the corporate officers, however. The corporation's motion was denied, and the corporation's vice-president then answered the interrogatories without asserting his Fifth Amendment privilege. In the subsequent criminal prosecution, which was based on an indictment returned after settlement of the civil case, the District Court denied the respondents' pretrial motion to suppress evidence obtained through the interrogatories, holding that the record showed that the government had not acted in bad faith in filing the interrogatories. On appeal, the United States Court of Appeals for the Sixth Circuit reversed the convictions of the corporate officers, on the ground that the government's use of interrogatories to obtain evidence in the nearly contemporaneous civil condemnation proceedings violated the corporate officers' Fifth Amendment privilege against self-incrimination. The United States Supreme Court granted certiorari.

Issue:

Was the government’s use of interrogatories to obtain evidence in the nearly contemporaneous civil condemnation proceedings violative of the corporate officers' Fifth Amendment privilege against self-incrimination, thereby warranting the reversal of the corporate officers’ convictions?

Answer:

No.

Conclusion:

The Court reversed the judgment of the Court of Appeals, finding that the record supported the District Court's finding that the government had not acted in bad faith in filing the interrogatories in the civil action. The Court held that the government's use in the criminal prosecution of evidence obtained through the interrogatories did not violate the corporate officers' Fifth Amendment privilege against self-incrimination, since the officers had been notified of contemplated criminal proceedings, but no assertion of the Fifth Amendment privilege had been made either by the vice-president, who was represented by counsel and who answered the interrogatories, or by the president, or by anyone associated with the corporation. Furthermore, the government's use of the interrogatories under the circumstances of the case, did not reflect such unfairness or want of consideration for justice as to violate due process or constitute a departure from proper standards in the administration of justice so as to require the exercise of the Supreme Court's supervisory power.

The Court found that the record amply supported the trial court judge's determination that the government did not act in bad faith in filing the interrogatories. Further, respondent vice president who answered the interrogatories never invoked his Fifth Amendment privilege against compulsory self-incrimination and was not barred from asserting his privilege simply because the corporation had no privilege of its own or because the proceeding was civil rather than criminal in character. Finally, respondent president could not claim compulsory self-incrimination where he never answered any interrogatories nor asserted the privilege.