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Can the guilty plea allocution of a corporation be admitted against an individual defendant in a criminal trial to prove the existence of a conspiracy? A recent evidentiary ruling in the Southern District of New York suggests it can, provided that “signatories” to the corporate plea agreement are available for cross-examination. This article reviews the history of the admission of individual co-conspirator plea allocutions in criminal cases and discuss why the admission of a corporate guilty plea, despite the opportunity to cross-examine a corporate employee who signed the plea agreement, does not provide the type of cross-examination guaranteed by the Confrontation Clause. As a result, the Confrontation Clause should operate as a per se bar on the admission of corporate plea allocutions in the trials of individual defendants.
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Lessons from the Insider Trading Prohibition Act After Its Likely Demise In the Senate
By Telemachus P. Kasulis
For a moment there, it really looked like it was going to happen. After a long and winding road, insider trading reform had reached the floor of the House of Representatives for a vote. The Insider Trading Prohibition Act (ITPA) had support on both sides of the aisle and on Dec. 5, 2019, the House voted to pass the ITPA. Then the bill went to the Senate and vanished. We should take this opportunity to learn what lessons we can from the successes and failures of the ITPA as a bill with an eye toward fashioning the best possible legislation next time — whenever that may be.
An Ounce of Prevention: Preparing for CARES Act Fraud Investigations
By Nekia Hackworth Jones
The government appears to be fulfilling its commitment to rooting out PPP fraud, even when the amount at issue falls below the $2 million threshold. No matter the size of the loan, a company that obtained PPP funds is not immune from a possible government investigation or audit. Borrowers have already started to submit loan forgiveness applications, and many more will be submitted in the weeks ahead, and both lenders and the government will be scouring these submissions for red flags.
Survey Says: Tips On Getting Over the Daubert Hurdle
By Rebecca Kirk Fair, Peter Hess and Vendela Fehrm
This article draws on a review of over 300 U.S. court rulings in cases involving surveys, including over 150 Daubert motions, and provides suggestions for getting survey evidence admitted for consideration in court. Our recommendations fall under two broad categories: relevance and reliability.
By Scott Pink and John Dermody
COVID-19 Contact Tracing v. Protecting Personal Privacy
As states roll back stay-at-home orders, contact tracing has quickly emerged as an essential tool to manage the spread of the coronavirus and allow the country to return to work safely. But innovative contact tracing methods raise a host of privacy concerns, forcing a reckoning with how we balance privacy and public health.
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