INVOKING 5TH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION IN BANKRUPTCY（ PART 1 ）

The 5th amendment to the United States Constitution states that no person may be compelled to testify against himself. Hence a person may refuse to answer a question on the grounds that it might incriminate himself. Our discussion involves questioning in a bankruptcy proceeding where a debtor refuses to answer invoking the 5th. Several years ago, I actually advised my client to invoke the 5th under intense questioning from the trustee. He invoked the 5th at least 10 times on record saying, “Upon advice of counsel, I invoke the 5th.” In that case debtor was involved in a business where he accepted cash in advance for a specific purpose. The problem was that the business was losing money so debtor used a portion of the cash received to keep the business afloat. When the business ground to a halt, debtor owed $500,000 of cash received from clients which were not used for the right purpose. Many of his clients showed up at the bankruptcy hearing to denounce debtor so trustee subjected client to intense questioning on what he did with the funds received. Many of the questions required answers that would have incriminated client in a criminal case for malversation of funds.

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