"The individual stands upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the state or to his neighbors to divulge his business or to open his doors to investigation, so far as it may tend to incriminate him. He owes no duty to the state since he receives nothing therefrom beyond the protection of his property and life. His rights are such as exist by the law of the land that is long antecedent to the organization of the state, and can only be taken from him by due process of the law in accordance with the Constitution. He owes nothing to the public so long as he does not trespass upon their rights." --- United States Supreme Court, Hale vs. Hinkle 201 U.S. 43 at 74..
The holding of Hale v. Hinkle concerns corporations...and it held that the examination of witnesses by a grand jury does NOT have to be preceded by a presentment, an indictment, or any formal charge.
The entire section from which you accurately quoted is:
"
If, whenever an officer or employee of a corporation were summoned before a grand jury as a witness he could refuse to produce the books and documents of such corporation, upon the ground that they would incriminate the corporation itself, it would result in the failure of a large number of **379 cases where the illegal combination was determinable only upon the examination of such papers. Conceding that the witness was an officer of the corporation under investigation, and that he was entitled to assert the rights of corporation with respect to the production of its books and papers, we are of the opinion that there is a clear distinction in this particular between an individual and a corporation, and that the latter has no right to refuse to submit its books and papers for an examination at the suit of the state. The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the state or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him. He owes no such duty to the state, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land long antecedent to the organization of the state, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights.
Upon the other hand, the corporation is a creature of the state. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises, and holds them subject to the laws of the state and the limitations of its charter. Its powers are limited by law. It can make no contract not authorized by its charter. Its rights to *75 act as a corporation are only preserved to it so long as it obeys the laws of its creation. There is a reserved right in the legislature to investigate its contracts and find out whether it has exceeded its powers. It would be a strange anomaly to hold that a state, having chartered a corporation to make use of certain franchises, could not, in the exercise of its sovereignty, inquire how these franchises had been employed, and whether they had been abused, and demand the production of the corporate books and papers for that purpose. The defense amounts to this: That an officer of a corporation which is charged with a criminal violation of the statute, may plead the criminality of such corporation as a refusal to produce its books. To state this proposition is to answer it. While an individual may lawfully refuse to answer incriminating questions unless protected by an immunity statute, it does not follow that a corporation, vested with special privileges and franchises, may refuse to show its hand when charged with an abuse of such privileges.
It is true that the corporation in this case was chartered under the laws of New Jersey, and that it receives its franchise from the legislature of that state; but such franchises, so far as they involve questions of interstate commerce, must also be exercised in subordination to the power of Congress to regulate such commerce, and in respect to this the general government may also assert a sovereign authority to ascertain whether such franchises have been exercised in a lawful manner, with a due regard to its own laws. Being subject to this dual sovereignty, the general government possesses the same right to see that its own laws are respected as the state would have with respect to the special franchises vested in it by the laws of the state. The powers of the general government in this particular in the vindication of its own laws are the same as if the corporation had been created by an act of Congress. It is not intended to intimate, however, that it has a general visitatorial power over the state corporations.
"Since 1905, the case of Hale vs. Hinkle has been cited by the Supreme Court over 144 times and by the lower federal and state courts over 1,600 times. Hale vs. Hinckle has never been reversed.
Actually, (and unfortunately because I agree with the statement you quoted in its entirety) Hale was overruled in part by Murphy v. Waterfront Com'n of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, (1964).
The weakness of the Hale v. Henkel dictum was immediately recognized both by lower federal courts [FN12] and by this Court itself. In Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560, decided in 1927 by a unanimous *70 Court, appellant refused to answer certain questions put to him in a deportation proceeding on the ground that they 'might have tended to incriminate him under the Illinois Syndicalism Law * * *.' Id., 273 U.S., at 112, 47 S.Ct., at 306. Instead of deciding the issue on the authority of the Hale v. Henkel dictum, the Court held that the privilege had been waived. The Court then said:
FN12. See, e.g., United States v. Lombardo, 9 Cir., 228 F. 980, aff'd on other grounds, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897, where the court accepted defendant's contention that if she answered certain questions, she might 'incriminate herself under the criminal laws of Washington.' See also, e.g., Buckeye Powder Co. v. Hazard Powder Co., 2 Cir., 205 F. 827; In re Doyle, 2 Cir., 42 F.2d 686, rev'd without opinion 47 F.2d 1086.
'This conclusion makes it unnecessary for us to consider the extent to which the Fifth Amendment guarantees immunity from self-incrimination under state statutes, or whether this case is to be controlled **1605 by Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652; Brown v. Walker, 161 U.S. 591, 608, 16 S.Ct. 644, 40 L.Ed. 819. Compare United States v. Saline Bank, 1 Pet. 100, 7 L.Ed. 69; Ballmann v. Fagin, 200 U.S. 186, 195, 26 S.Ct. 212, 50 L.Ed. 433.' 273 U.S., at 113, 47 S.Ct., at 306.
In a subsequent case, decided in 1933, this Court said that the question-- whether 'one under examination in a federal tribunal could not refuse to answer on account of probable incrimination under state law'--was 'specifically reserved in Vajtauer v. Commr. of Immigration,' and was not 'definitely settled' until 1931. United States v. Murdock, 290 U.S. 389, 396, 54 S.Ct. 223, 226, 78 L.Ed. 381.
In 1931, the Court decided United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210, the case principally relied on by respondent here. Appellee had been indicted for failing to supply certain information to federal revenue agents. He claimed that his refusal had been justified because it rested on the fear of federal and state incrimination. The Government argued that the record supported only a claim of state, not federal, incrimination, and that the Fifth Amendment does not protect against a claim of state incrimination. Appellee did not respond to the latter argument, but instead rested his entire case on the claim that his refusals had in each instance been based on federal as well as state incrimination. In support of *71 its constitutional argument, the Government cited the same two English cases erroneously relied on in the Hale v. Henkel dictum--King of the Two Sicilies v. Willcox, supra, which had been overruled, and The Queen v. Boyes, supra, which was wholly inapposite. An examination of the briefs and summary of argument indicates that neither the Government nor the appellee informed the Court that King of the Two Sicilies had been overruled by United States of America v. McRae, supra. [FN13]
FN13. The Government also relied on the North Carolina case of State v. March, supra, which, as previously noted, see note 10, supra, had been discredited by the subsequent case of State v. Thomas, supra.
This Court decided that appellee's refusal to answer rested solely on a fear of state prosecution, and then concluded, in one brief paragraph, that such a fear did not justify a refusal to answer questions put by federal officers.
The Court gave three reasons for this conclusion. The first was that:
'Investigations for federal purposes may not be prevented by matters depending upon state law. Constitution, art. 6, cl. 2.' 284 U.S., at 149, 52 S.Ct., at 64.
This argument, however, begs the critical question. No one would suggest that state law could prevent a proper federal investigation; the Court had already held that the Federal Government could, under the Supremacy Clause, grant immunity from state prosecution, and that, accordingly, state law could not prevent a proper federal investigation. The critical issue was whether the Federal Government, without granting immunity from state prosecution, could compel testimony which would incriminate under state law. The Court's first 'reason' was not responsive to this issue.
The second reason given by the Court was that:
'The English rule of evidence against compulsory self-incrimination, on which historically that contained *72 in the Fifth Amendment rests, does not protect witnesses against disclosing offenses in violation of the laws of another country. King of the Two Sicilies v. Willcox, 7 St.Tr.(N.S.) 1050, 1068; Queen v. Boyes, 1 B. & S. 311, 330.' 284 U.S., at 149, 52 S.Ct., at 64.
**1606 As has been demonstrated, the cases cited were in one instance overruled and in the other inapposite, and the English rule was the opposite from that stated in this Court's opinion: The rule did 'protect witnesses against disclosing offenses in violation of the laws of another country.' United States of America v. McRae, supra.
The third reason given by the Court in Murdock was that:
'This court has held that immunity against state prosecution is not essential to the validity of federal statutes declaring that a witness shall not be excused from giving evidence on the ground that it will incriminate him, and also that the lack of state power to give witnesses protection against federal prosecution does not defeat a state immunity statute. The principle established is that full and complete immunity against prosecution by the government compelling the witness to answer is equivalent to the protection furnished by the rule against compulsory self-incrimination. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110; Brown v. Walker, 161 U.S. 591, 606, 16 S.Ct. 644, 40 L.Ed. 819; Jack v. Kansas, 199 U.S. 372, 381, 26 S.Ct. 73, 50 L.Ed. 234. Hale v. Henkel, 201 U.S. 43, 68, 26 S.Ct. 370, 50 L.Ed. 652.'
This argument--that the rule in question had already been 'established' by the past decisions of the Court--is not accurate. The first case cited by the Court--Counselman v. Hitchcock--said nothing about the problem of incrimination under the law of another sovereign. The second case--Brown v. Walker-- merely held that the *73 federal immunity statute there involved did protect against state prosecution. The third case--Jack v. Kansas--held that the Due Process Clause of the Fourteenth Amendment did not prevent a State from compelling an answer to a question which presented no 'real danger of a Federal prosecution.' 199 U.S., at 382, 26 S.Ct., at 76. The final case--Hale v. Henkel--contained dictum in support of the rule announced which was without real authority and which had been questioned by a unanimous Court in Vajtauer v. Commissioner of Immigration, supra. Moreover, the Court subsequently said, in no uncertain terms, that the rule announced in Murdock had not been previously 'established' by the decisions of the Court. When Murdock appealed his subsequent conviction on the ground inter alia, that an instruction on willfulness should have been given, the Court affirmed the Court of Appeals' reversal of his conviction and said that:
'Not until this court pronounced judgment in United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210, had it been definitely settled that one under examination in a federal tribunal could not refuse to answer on account of probable incrimination under state law. The question was involved but not decided in Ballmann v. Fagin, 200 U.S. 186, 195, 26 S.Ct. 212, 51 L.Ed. 433, and specifically reserved in Vajtauer v. Commr. of Immigration, 273 U.S. 103, 113, 47 S.Ct. 302, 71 L.Ed. 560.' United States v. Murdock, 290 U.S. 389, 396, 54 S.Ct. 223, 226.
Thus, neither the reasoning nor the authority relied on by the Court in United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, supports its conclusion that the Fifth Amendment permits the Federal Government to compel answers to questions which might incriminate under state law.
In 1944 the Court, in Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, was confronted with the situation where evidence compelled by a State under a grant of state immunity was 'availed of by the (Federal) Government' and *74 introduced in a federal prosecution. **1607 Jack v. Kansas, 199 U.S., at 382, 26 S.Ct., at 76. This was the situation which the Court had earlier said it did 'not believe' would occur. Ibid. Nevertheless, the Court, in a 4-to-3 decision, upheld this practice, but did so on the authority of a principle which is no longer accepted by this Court. The Feldman reasoning was essentially as follows:
'(T)he Fourth and Fifth Amendments intertwined as they are, (express) supplementing phases of the same constitutional purpose * * *.' 322 U.S. 489--490, 64 S.Ct., at 1083.
'(O)ne of the settled principles of our Constitution has been that these Amendments protect only against invasion of civil liberties by the (Federal) Government whose conduct they alone limit.' Id., 322 U.S., at 490, 64 S.Ct., at 1083.
'And so while evidence secured through unreasonable search and seizure by federal officials is inadmissible in a federal prosecution, Weeks v. United States, supra (232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652); * * * incriminating documents so secured by state officials without participation by federal officials but turned over for their use are admissible in a federal prosecution. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048.' 322 U.S., at 492, 64 S.Ct., at 1084.
The Court concluded, therefore, by analogy to the then extant search and seizure rule, that evidence compelled by a state grant of immunity could be used by the Federal Government. But the legal foundation upon which that 4-to-3 decision rested no longer stands. Evidence illegally seized by state officials may not now be received in federal courts. In Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, the Court held, over the dissent of the writer of the Feldman decision, that 'evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant's immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant's *75 timely objection in a federal criminal trial.' 364 U.S., at 223, 80 S.Ct., at 1447. Thus, since the fundamental assumption underlying Feldman is no longer valid, the constitutional question there decided must now be regarded as an open one.
The relevant cases decided by this Court since Feldman fall into two categories. Those involving a federal immunity statute--exemplified by Adams v. Maryland, 347 U.S. 179, 74 S.Ct. 442, 98 L.Ed. 608--in which the Court suggested that the Fifth Amendment bars use by the States of evidence obtained by the Federal Government under the threat of contempt. And those involving a state immunity statute--exemplified by Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302--where the Court, applying a rule today rejected, held the Fifth Amendment inapplicable to the States. [FN14]
FN14. In Mills v. Louisiana, 360 U.S. 230, 79 S.Ct. 980, 3 L.Ed.2d 1193, the Court, without opinion, simply applied the rule announced in Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302. In Hutcheson v. United States, 369 U.S. 599, 82 S.Ct. 1005, there was no opinion of the Court.
In Adams v. Maryland, supra, petitioner had testified before a United States Senate Committee investigating crime, and his testimony had later been used to convict him of a state crime. A federal statute at that time provided that no testimony given by a witness in congressional inquiries 'shall be used as evidence in any criminal proceeding against him in any court * * *.' 62 Stat. 833. The State questioned the application of the statute to petitioner's testimony and the constitutionality of the statute if construed to apply to state courts. The Court, in an opinion joined by seven members, made the following significant statement: 'a witness does **1608 not need any statute to protect him from the use of self-incriminating testimony he is compelled to give over his objection. The Fifth Amendment takes care of that without a statute.' 347 U.S., at 181, 74 S.Ct., at 445. [FN15] This statement suggests *76 that any testimony elicited under threat of contempt by a government to whom the constitutional privilege against self-incrimination is applicable (at the time of that decision it was deemed applicable only to the Federal Government) may not constitutionally be admitted into evidence against him in any criminal trial conducted by a government to whom the privilege is also applicable. This statement, read in light of today's decision in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, draws into question the continuing authority of the statements to the contrary in United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, and Feldman v. United States, supra. [FN16]
FN15. The Court in Adams v. Maryland, 347 U.S. 179, 74 S.Ct. 442, went on to construe the statute as affording more protection than would be provided by the Fifth Amendment alone. It held that the statute applied even where, as there, the witness had not claimed his privilege against self-incrimination before being required to testify. It held, as well, that the statute did, and constitutionally could, prevent use of the testimony in state as well as federal courts.
This overruling is recognized by cases like, for example:
U.S. v. Insurance Consultants of Knox, Inc., 187 F.3d 755 (7th Cir.1999)
Hix Corp. v. National Screen Printing Equipment, Inc., 2000 WL 1026351 (D.Kan. 2000)
Oman v. State, 737 N.E.2d 1131(Ind. Sep 26, 2000) rehearing denied (2001)
Check "n Go of Florida, Inc. v. State, 790 So.2d 454,(Fla.App. 5 Dist. 2001) (NO. 5D00-3055), rehearing denied (Jul 20, 2001)
State ex rel. Goddard v. Western Union Financial Services, Inc., 216 Ariz. 361, 166 P.3d 916, 512 Ariz. Adv. Rep. 31 (Ariz.App. Div. 1, 2007)
Wright v. State, 2008 WL 6124462 (Nev. 2008)
