Bankruptcy – Do I Have the Right to Remain Silent?

04 Apr Bankruptcy – Do I Have the Right to Remain Silent?

Even in bankruptcy, the fifth amendment gives you the right to remain silent. Even in bankruptcy, if you are accused of a crime or fear that you might be, you need to think about the fifth amendment.The United States Constitution protects people against being required to incriminate themselves. However the Bankruptcy Code requires debtors to answer questions and provide information required by the Trustee. How do we deal with these conflicting demands?

Any debtor who is facing criminal charges or even fears facing criminal charges really should consider obtaining criminal counsel prior to filing for bankruptcy and prior to answering any questions posed by a bankruptcy trustee. The trustee will start by asking routine questions such as the debtor’s name, address and social security number. The trustee will ask for identification. The trustee will ask for tax returns and other recorded information.

Here’s where things start getting tricky. Some “things” which the trustee might want, like a computer, have the potential of being incriminating. So they are protected by the fifth amendment. Some things, like a tax return, or even bank records, are already recorded and in the hands of other people. So even if they are not “incriminating” they are not “testimonial.” Things which are not “testimonial” are not protected by the fifth amendment. But most criminal attorneys would advise you not to give up anything without a fight.

Under the Bankruptcy Code, you cannot be forced to testify in face of your fifth amendment rights unless you are granted immunity from prosecution.

This is a very complex and critical area of the law. So if you face the risk of criminal prosecution, get competent advice from a criminal defense attorney before you respond to any questions or demands for information in a bankruptcy case. Criminal counsel might recommend against filing for bankruptcy or taking the fifth amendment if you file.

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Jay S. Fleischman is a bankruptcy lawyer with offices in Los Angeles and New York. He can often be found on Google+ and Twitter, where he shares information about consumer protection issues and personal finance.
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