Criminal Procedure Within the Firm

60 Pages Posted: 27 Jun 2007

Abstract

It seems improbable that the theoretical and doctrinal framework of criminal procedure, developed mostly through a binary model of the individual and the state, would fit without modification in the tripartite model of the state, the firm, and the individual that characterizes the investigation and sanctioning of criminal conduct within legal entities. This intuition - which has been underexplored in spite of heated public debate about the state's practices in this area - proves correct. I develop some components of a framework for understanding procedure for individual cases of criminal wrongdoing within firms and generating insights to guide reform. The process of pursuing individual cases within firms (as opposed to firm cases against firms) is distinctive for at least three reasons: in terms of causation and incentives, the presence of an organization materially alters the incidence of individual misconduct ex ante and the efficiency and efficacy of investigating and prosecuting that conduct ex post; the nature of the applicable substantive criminal violations (white collar crimes) causes such cases to ripen into criminal cases more slowly than those outside business firms; and lawyers have multiple roles in such cases not only ex post but also ex ante. I evaluate two current practices in light of these structural differences: state use of the fruits of employer coercion of employees' waivers of the right to silence; and state negotiation with firms over the scope of firms' indemnification of their agents for litigation costs. I conclude that some reforms of current practices in these areas would be beneficial but that calls for abolition of those practices are misguided.

Keywords: Criminal Procedure, Criminal Law, Corporate Law, Securities Law, White Collar Crime

Suggested Citation

Buell, Samuel W., Criminal Procedure Within the Firm. Stanford Law Review, Vol. 59, p. 1613, 2007; Washington U. School of Law Working Paper No. 07-06-01. Available at SSRN: https://ssrn.com/abstract=992313

Samuel W. Buell (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7193 (Phone)

Register to save articles to
your library

Register

Paper statistics

Downloads
144
Abstract Views
896
rank
198,727
PlumX Metrics