When filing for bankruptcy, the Federal Bankruptcy Act requires the debtor (the person filing for bankruptcy) to submit to an examination by his or her creditors. The purpose of this examination is to obtain information about the debt and other assets owned by the bankrupt individual. As it is critical that the court obtain thorough and truthful information, the Bankruptcy Act provides limited immunity to protect the testifying debtor.
What Immunity Is Provided in Bankruptcy?
Immunity offered to a person who is testifying often ensures that the individual can testify without fear of criminal prosecution. The level of immunity provided by the Bankruptcy Act is equivalent to the 5th Amendment protection against self-incrimination. This means that neither the testimony itself nor any evidence directly or indirectly derived from the testimony can be used against the debtor in a criminal proceeding.
What Is NOT Protected by Immunity?
The immunity does NOT extend to anything beyond the debtor's oral testimony. This means that non-testimonial evidence, including schedules filed, books, or records can be used for criminal prosecution against the bankrupt person.
Immunity protection is only provided for past acts or crimes admitted in testimony. The immunity does NOT include protection for perjury or false swearing during testimony. Any debtor who commits perjury or false swearing can be criminally prosecuted, and the incriminating testimony, as well as all other testimony, can be used as evidence.
Who Is Protected by the Immunity?
Immunity for testimony is only given to the individual who is filing for bankruptcy. Testimony given by other witnesses can be used in criminal proceedings against the bankrupt person.
Bankruptcy proceedings are in the federal court jurisdiction, and all immunity is provided within the federal court. The courts have been split as to whether immunity extends to state proceedings.
Do I Need a Bankruptcy Attorney?
Bankruptcy proceedings can be complicated, and the assistance of an experienced bankruptcy attorney can facilitate the process. If you are concerned about criminal prosecution as a result of your testimony or any other testimony, seeking advice from an attorney is the best protection, especially in interpreting the application of the immunity protection for your specific case.