Internal Investigations and the Specter of State Action

The Spring edition of the Litigation Journal published by the American Bar Association includes my article “Internal Investigations and the Specter of State Action.”  You will find a PDF copy in the Publications section of this site.

The article was inspired by the May 2019 opinion of Chief Judge Coleen McMahon of the United States District Court for the Southern District of New York in United States v. Connolly.  Judge McMahon explored whether a theoretically “private” and “voluntary” internal investigation conducted by a large corporation could trigger after-effects normally associated with a formal, state-run investigation.   The specific question before her was whether an individual criminal defendant could claim that statements given to lawyers conducting an internal investigation for his corporate employer  were “compelled” within the meaning of the Fifth Amendment.  Her answer to this question was largely Yes: because the prosecutor was actively involved in overseeing the internal investigation, she concluded that the acts of private lawyers conducting it were “fairly attributable to” the government.

Her opinion focused on the issue of compelled self-incrimination.  The point of my short piece is that her reasoning may lead to other legal issues as well.

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