USA Law and Practice Contributed by: Daniel J. Fetterman and Brian S. Choi, Kasowitz LLP
2.6 Right to Not Co-Operate or Self- Incriminate
With the rapid advancement of AI tools, companies and executives can expect that the US enforcement authorities’ use of data analytics and similar investiga - tive tools will become more sophisticated and sub - stantially increase. 2.5 Internal Investigations and Co-Operation When management at companies learns about potential financial misconduct by their employees, they regularly will conduct an internal investigation to understand whether the alleged misconduct actu - ally occurred, as well as the nature and extent of that misconduct. To fulfil their fiduciary duties, officers and directors must investigate allegations of material financial misconduct and can rely on the results of their internal investigations to make decisions about how to deal effectively with the financial misconduct if it has occurred. The communications, findings, and conclusions of internal investigations generally are protected by the attorney-client privilege and work product doctrine. Companies often use the results of their internal investigations to voluntarily disclose information to law enforcement authorities to get credit for their co- operation, including reduced or no criminal charges in the form of favourable plea agreements, deferred prosecution agreements, non-prosecution agree - ments and outright declinations of prosecution. DOJ has created strong incentives for companies to self-report their financial misconduct to obtain such favourable outcomes. DOJ’s current Corporate Enforcement Policy specifically provides for a dec - lination of prosecution if a company timely and vol - untarily self-discloses its misconduct (ie, before the government is aware of or independently opens its own investigation); fully co-operates with an ensuing government investigation; and remediates the issues underlying the misconduct; and where there are no aggravating circumstances relating to the nature and seriousness of the offence. Even if the company does not timely self-report, but nevertheless co-operates fully and in good faith, it can obtain co-operation cred - it that can result in an outcome that avoids criminal prosecution.
It is common for financial crime investigations to involve arrests or interviews of suspects. Witnesses, subjects and targets of an investigation also may be subpoenaed before a grand jury to testify and provide documents, or they may agree to be interviewed and produce documents voluntarily – both before and after charges are brought. Any individual in the United States may elect not to co-operate with an investigation, and has a constitu - tional right under the Fifth Amendment not to speak with the authorities if doing so might incriminate them - selves. The right against self-incrimination extends throughout the criminal investigation and prosecution process but is directed at testimonial self-incrimina - tion. Importantly, the right against self-incrimination does not apply to corporations, and corporations can be compelled to produce documents and information. Individuals may be compelled to produce company documents as well as private documents and informa - tion in their possession so long as, with regard to the private documents, the act of producing them – which is deemed to be testimonial – does not incriminate them by admitting the private documents exist, are authentic or are in their possession. The government ordinarily can get around the “act of production” issue by granting “act of production” immunity or by claim - ing that the act of production adds little or nothing to what the government already knew and could prove. If a company or witness wilfully fails to comply with a subpoena to produce documents, they may be held in criminal contempt or potentially be charged with additional crimes for obstructing justice. Similarly, if a company or witness destroys documents called for production by a subpoena, they also can be charged with obstructing an investigation, and in civil cases, the jury may be instructed that they can draw an infer - ence that whatever information was in the destroyed documents would have been adverse to the destroy - ing party’s case. 2.7 Pre-Charge Powers In connection with financial crimes cases, the govern - ment can seek a restraining order over the assets of
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