The (Un?)Constitutionality of Compelling Non-Immunized Testimony in Deceptive Trade Practices Investigations Conducted by the Attorney General of the State of Arkansas

Abstract

The Attorney General of the State of Arkansas has the statutory authority to investigate allegations of violations of Arkansas's prohibition on deceptive trade practices. Under this authority, the Attorney General can conduct investigations and file civil enforcement lawsuits. In conducting an investigation, the Attorney General can compel the target of the investigation to produce documents and give a deposition. A violation of Arkansas's prohibition on deceptive trade practices is a civil offense and a crime. Arkansas's' Attorney General, however, does not have the authority to prosecute criminal cases, nor can that office offer a person immunity from a criminal prosecution. Thus, the Attorney General can compel the target of a deceptive trade practices act investigation to produce testimonial evidence that can be used against that target in later criminal prosecution. Because a violation of Arkansas's ban on deceptive trade practices is a criminal offense, and because the Attorney General lacks the authority to grant a person immunity from a criminal prosecution, the Attorney General's authority to compel the target of a deceptive trade practices investigation to produce non-immunized testimonial evidence violates the Fifth Amendment privilege against self-incrimination. This paper explains why that is so, and offers recommendations on how the Arkansas General Assembly can cure the Fifth Amendment problem without adversely impacting the Attorney General's authority to investigate and put an end to deceptive trade practices.