NCJ Number
178096
Journal
American Criminal Law Review Volume: 36 Issue: 3 Dated: Summer 1999 Pages: 983-1033
Date Published
1999
Length
51 pages
Annotation
This article discusses issues of criminal procedure that are particularly relevant to litigation involving white-collar crimes, with emphasis on the initiation of white-collar criminal prosecutions, issues arising from parallel civil and criminal proceedings, and issues related to attorney representation raised during white-collar crime litigation.
Abstract
A prosecutor has broad discretion to determine whether and how to charge a defendant. The United States Supreme Court held in United States v. Batchelder that a prosecutor may charge a defendant under either of two overlapping laws with unequal penalties, unless a defendant can show that the more lenient statute clearly manifests an intent to repeal the more severe law and so long as the prosecutor does not unconstitutionally discriminate between classes of defendants in choosing which law to apply. Parallel civil litigation can result in additional civil penalties. In addition, parallel civil litigation can jeopardize a defendant's Fifth Amendment privilege against self-incrimination, expand the scope of criminal discovery, or expose the basis of the criminal defense. The Constitution does not require a stay of a civil action that overlaps with a criminal prosecution, but courts have broad discretion in resolving procedural and constitutional issues presented by parallel proceedings. Major issues of interest to prosecutors and defense attorneys include issues raised by subpoenas served on attorneys and the attendant issue of the applicability of State-bar ethics rules to Federal prosecutors, the applicability of local ethics rules to Federal prosecutors, attorney-client privilege, and potential attorney fee forfeiture and the accompanying constitutional considerations. Footnotes