In a post on the Global Anticorruption Blog curated at Harvard Law School, which you will find in PDF format in the Publications page, and you can see online here, I describe a subtle but very important shift in France’s efforts to address corporate crime: Whereas traditionally complex economic and financial crimes involving international corporations had been handled through a procedure known as an instruction, led by an investigating magistrate, the National Financial Prosecutor of France has recently indicated that over 80% of his cases are now being handled by his office without reference to an investigating magistrate. This shift is likely to make French prosecutors considerably more nimble and effective, and much better positioned to work on equal terms with their counterparts in the United States, the United Kingdom, and elsewhere. The joint resolution announced in January 2020 that aerospace giant Airbus had reached deferred prosecution agreements with all three countries — in an investigation led by France, and in which it received the largest share of the penalty payments — shows the effects of this evolution.
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.
On April 10, the excellent Compliance & Enforcement blog edited by the NYU Program on Corporate Compliance and Enforcement published my comment called “What the Hoskins Rule 29 Acquittal Reveals About Contesting ‘Jurisdictional’ Issues in American Criminal Justice.” You will find a PDF in the Publications page of this site, and a link to it in the NYU site is here.
The Comment addresses an oddity in US criminal procedures that I believe is not fully appreciated: US criminal cases (especially at the federal level) often involve “threshold” issues unrelated to the core issue of guilt itself. While the term “threshold” is admittedly unscientific, I use it to refer to factual questions that do not go to whether the defendant committed a prohibited act (or had requisite intent), but rather whether the relevant laws apply to the defendant at all, whether the court has “jurisdiction” because of a needed federal element such as interstate commerce, whether venue is proper in that District, and increasingly whether the criminal laws in question have the “territorial reach” to apply to the case. The oddity is that while such issues can indeed be considered “threshold,” in most cases there is no procedure to resolve them at the “threshold,” that is, before an expensive and risky trial. The very recent Hoskins case was an extreme example of this, and the Comment summarizes some other recent or pending cases presenting the same problem. The Comment explores why this phenomenon is built into distinctively American procedures.
I would be very interested in your views on whether this is, in fact, a problem — I believe it is — and any ideas you may have on how to deal with it.