EX PARTE PRE-TRIAL DISCOVERY - THE REAL VICE OF PARALLEL INVESTIGATIONS

• NCJ Number: 66199
• Journal: Washington and Lee Law Review Volume: 36 Issue: 4 Dated: (FALL 1979) Pages: 1049-1074
• Author(s): J M HASSETT
• Date Published: 1979
• Length: 26 pages
• Corporate Author: Washington and Lee University
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE ARGUMENT THAT PARALLEL CIVIL AND CRIMINAL INVESTIGATIONS OF THE SAME MATTER ARE UNFAIR TO THE DEFENDANT BECAUSE OF GOVERNMENT USE OF COMPULSORY PROCESSES IN CASE DEVELOPMENT IS PRESENTED.

Abstract

THE RECENT TREND TOWARD MORE FREQUENT IMPOSITION OF CRIMINAL PENALTIES FOR VIOLATIONS OF THE FEDERAL REVENUE AND SECURITIES LAWS HAS GENERATED MUCH LITIGATION DEFINING THE PROPER RELATIONSHIP BETWEEN CIVIL AND CRIMINAL INVESTIGATIONS OF THE SAME MATTER. ONE OF THE MOST CONTESTED ISSUES WITHIN THE CONTEXT OF PARALLEL INVESTIGATIONS IS THHE USE OF AGENCY EMPLOYEES AS ASSISTANTS TO A UNITED STATES ATTORNEY IN PREPARING A CASE OR PRESENTING IT TO A GRAND JURY. GRAND JURY POWERS EXCEED THOSE ACCORDED AGENCIES IN TWO RESPECTS. FIRST, THE GRAND JURY WITNESS IS NOT PERMITTED TO HAVE COUNCIL WITH HIM WHILE IN THE GRAND JURY ROOM. SECOND, THERE IS A GREATER OPPORTUNITY FOR JUDICIAL REVIEW OF AN ADMINISTRATIVE SUBPOENA THAN OF A SUBPOENA ISSUED BY A GRAND JURY. DESPITE THESE LIMITATIONS OF AGENCY INVESTIGATIVE POWERS, PARALLEL INVESTIGATIONS OF COMPLEX ECONOMIC CRIMES ARE BASICALLY UNFAIR TO THE DEFENDANT BECAUSE OF GOVERNMENT USE OF COMPULSORY PROCESSES IN DEVELOPMENT OF ITS CASE AGAINST THE DEFENDANT AT PROCEEDINGS FROM WHICH THE DEFENDANT IS EXCLUDED. THE DEFENDANTS ARE NOT GIVEN THE OPPORTUNITY TO CONFRONT AND CROSS-EXAMINE WITNESSES WHO ARE MAKING THE CASE AGAINST THEM IN PARALLEL INVESTIGATIONS. THE BASIS FOR THE TRADITIONAL OBJECTION TO EXCHANGES OF INFORMATION BETWEEN PARALLEL CIVIL AND CRIMINAL INVESTIGATIONS OF THE SAME CONDUCT IS AN ASSUMPTION THAT KNOWLEDGE POSSESSED BY ONE PART OF THE GOVERNMENT SHOULD BE KEPT SECRET FROM ANOTHER PART. NEVERTHELESS, CONGRESS AND THE COURTS HAVE BEEN UNWILLING TO ADHERE TO THAT ASSUMPTION IN THE CASE OF COMPLEX ECONOMIC CRIMES THAT ARE INVESTIGATED BY AGENCY PERSONNEL WITH PARTICULAR EXPERTISE. ALTHOUGH THERE IS NOTHING INHERENTLY IMPROPER IN SUCH EXCHANGES OF INFORMATION, DUE PROCESS CONSIDERATIONS HAVE BEEN OVERLOOKED. ONCE THE DEFENDANT HAS BEEN ESTABLISHED, HE MUST BE PERMITTED TO PARTICIPATE IN FURTHER PROCEEDINGS AT WHICH COMPULSORY PROCESS IS USED TO DEVELOP EVIDENCE AGAINST HIM. FOOTNOTES ARE PROVIDED IN THE ARTICLE. (LWM)