Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
Precautions Defense Counsel Should Consider In Making Attorney Proffers
For good reason, ordinarily courts are reluctant to admit statements of counsel as evidence in a criminal trial. Rulings in two recent high-profile local cases defy the common wisdom. In U.S. v. Menendez, No. 23-cr-490 (S.D.N.Y.), the prosecution of New Jersey Sen. Bob Menendez and others on bribery and related charges, the court admitted a PowerPoint presentation Menendez's counsel made to prosecutors prior to indictment as part of an attorney proffer. The government offered the presentation in support of obstruction charges included in a subsequent indictment against the senator. Not surprisingly, the government's aggressive step has gotten the attention of the defense bar. Although the government has indicated that it expects such uses of attorney proffers to be rare, as discussed below, its action is troubling and not unique. The government's step suggests precautions that defense counsel should consider in making attorney proffers.
In U.S. v. Coburn & Schwartz, No. 19-cr-120 (D.N.J.), a District of New Jersey prosecution of former senior executives of Cognizant Technology Solutions Corporation (Cognizant) on Foreign Corrupt Practices Act (FCPA) charges based on the alleged bribery of Indian government officials, the court upheld a defense subpoena seeking trial testimony from the prominent law firm that conducted an internal investigation in the matter. The ruling confirms the well-recognized risk that presenting information regarding an internal investigation to prosecutors waives any privilege regarding what was presented. The ruling also illustrates how a narrowly tailored demand for testimony about what an internal investigation failed to find can be a potentially valuable tool for defense counsel.
This premium content is locked for Entertainment Law & Finance subscribers only
ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN ENTERTAINMENT LAW.
- Stay current on the latest information, rulings, regulations, and trends
- Includes practical, must-have information on copyrights, royalties, AI, and more
- Tap into expert guidance from top entertainment lawyers and experts
Already a have an account? Sign In Now Log In Now
For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
How AI Has Affected PR
When we consider how the use of AI affects legal PR and communications, we have to look at it as an industrywide global phenomenon. A recent online conference provided an overview of the latest AI trends in public relations, and specifically, the impact of AI on communications. Here are some of the key points and takeaways from several of the speakers, who provided current best practices, tips, concerns and case studies.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.