Defense goals depending where the case is in the

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Defense Goals Depending where the case is in the judicial process, def attorneys have 4 general goals Prevent indictment Prevent conviction Prevent imprisonment Prevent long imprisonment Prosecutors are highly selective of the cases they bring They prefer cases strongly in their favor
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Defense Strategy Controlling information is the major objective Defense council tends to be involved much earlier in the process to limit discoverable evidence P.R. campaigns to shape public opinion Make the case costly and time consuming Corporations can afford a long, drawn out trials, governments often cannot Seek alternatives to trial
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Common Defenses Good faith Lacked knowledge of potential harm and intent; willful ignorance doesn’t count Due diligence Took every step they could to abide by the law Isolated occurrence/rogue employees Not systematic criminal activity Ignorance Not aware of crime occurring “Reverse Nuremburg” Only gave orders, didn’t do anything illegal
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Determining Due Diligence An established compliance program run by a high ranking employee Demonstrably avoiding giving responsibility to employees prone to misconduct Communication of compliance policies Made reasonable efforts to meet compliance Enforced standards when wrongdoing was discovered, and took steps to prevent recurrence
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Ethical Dilemmas Fees may be paid with illegally obtained funds Money Laundering and Control Act (1986) Lawyers become liable if they knowingly deposit $10,000+ in fees that are proceeds from crime Whose interests are being protected? Corporation or the executives Especially if the executive’s lawyers are paid by the corp.
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Procedure
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Leading up to Prosecution The decision to prosecute can be contentious Outside influences, such as politicians, business leaders, and community leaders may attempt to impact/prevent the decision Street offenders rarely have this Time to prosecution may take longer in order to develop the strongest case possible
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Deferred Prosecution Recent DOJ policy has been to avoid criminal prosecution of WCC when possible Saves time/money, decreases collateral damage to innocent employees, etc. Avoids the “Arthur Anderson effect” Two types of agreements are used to gain compliance without the need for a trial Deferred prosecution agreement (DPA) Non-prosecution agreement (NPA)
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Prosecution Agreements Deferred prosecution agreement (DPA) No prosecution as long as the corporation agrees to meet certain conditions in a timely manner Often 1.5 – 3 years Filed with the court; more accurate stats Non-prosecution agreement (NPA) Agreements not to prosecute in exchange for cooperation and/or alternate penalties Much more informal
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Deferred Prosecution Stats Use of DPAs and NPAs for corporate crimes doubled between 2002 and 2005 Between 2004 and 2009 U.S. attorney prosecuted 1659 cases and
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