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Corporate crime has plagued the American economy during the past two decades, causing staggering unemployment and destroying investor confidence in the stock market. Typically involving complex financial schemes and sophisticated cover-ups, corporate crime is incredibly difficult to detect and prevent. Corporate culture often embraces the criminal activity, so employees are less likely to report or refrain from wrongdoing. Within the corporate setting, minor accounting or tax violations can quickly snowball into complex fraudulent schemes. Most corporate crime entails methodical deceit and concealment by intelligent high-level executives who are familiar with and can anticipate and evade government regulation. In addition, corporations hire experienced lawyers who conduct internal investigations to defend the corporation and utilize principles such as the attorney-client privilege and work-product protection to make the government’s investigation more difficult.
On July 9, 2002, in response to the ever-growing problem of corporate crime, President Bush established the Corporate Fraud Task Force to strengthen prosecution of corporate crime by the Department of Justice (DOJ). Additionally, Congress enacted the Sarbanes-Oxley Act in 2002 to expand the Securities and Exchange Commission’s ability to regulate corporate activity and increase compliance requirements for corporate accounting practices. In 2003, Deputy Attorney General Larry D. Thompson issued a memorandum establishing new federal guidelines for the prosecution of business organizations. While the legal community generally accepted SarbanesOxley, many criticized the Thompson Memorandum for being unfairly prejudicial to corporations and individual defendants. . .
Part II.A of this Note will discuss the Fifth and Sixth Amendments, indemnification agreements, and the attorney-client privilege in the context of corporate crime. Part II.B of this Note will then consider the role of the federal prosecutor in corporate criminal investigations. Part II.C of this Note will discuss the purpose of deferred prosecution agreements and explore the effects deferred prosecution has on corporations and employees. Part II.D of this Note will examine how the federal prosecutorial guidelines of business organizations have transformed prosecutorial discretion. Finally, in Part III, this Note will analyze the limitations of the Filip Memorandum and promote the Attorney-Client Privilege Protection Act and the Accountability in Deferred Prosecution Act. . .
The United States Court of Appeals for the First Circuit, which encompasses Maine, New Hampshire, Massachusetts, Rhode Island, and Puerto Rico, is small not only in terms of the geographic area it encompasses, but more important, it is the regional circuit with the smallest number of judgeships. Indeed, for many years, it had only three judgeships—the same size as regular United States court of appeals panels.
Because of its small size and caseload, the First Circuit has not received much attention. Receiving far more attention have been the “old” Fifth Circuit before it was divided, because of its importance in the implementation of school desegregation; the District of Columbia Circuit (D.C. Circuit), considered by many to be the nation’s preeminent administrative law court; the Seventh Circuit, because the University of Chicago law professors on the court have brought a law-and-economics approach to it; and the Ninth Circuit, the nation’s largest, because of efforts to divide it and because of the Supreme Court’s reversal of its decisions. . .
This article explores how issues concerning electronic evidence and discovery (e-discovery) and its associated electronically stored information (ESI) are not relegated to civil litigation, and that the subject matter has an equal impact on criminal litigation. The folloewing suggests a rapidly growing need for courts to uniformly recognize the increasing necessity for an accused to access ESI in order to effectively build a defense in modern-day criminal prosecutions where the context in which the ESI was forensically ascertained may be as important to a defendant as the content of the information recovered.
Section I introduces the subject matter of e-discovery and ESI. Section II addresses the manner in which civil litigation pioneered a judicial focus on codifying specific rules of civil procedure governing the pretrial exchange of ediscovery. Section III delves into the manner in which the criminal justice system appears to be handling e-discovery in criminal matters. It further discusses an arguable disconnect between traditional rules of criminal procedure addressing pretrial discovery and the growing need for modernization of the rules in criminal proceedings to specifically direct parties on how to uniformly interact concerning ESI where such directions exist in civil litigation matters. Moreover, Section IV addresses the concern that the status quo of e-discovery in criminal matters places parties that lack financial resources at a substantial disadvantage, as opposed to those who are able to retain legal counsel to navigate e-discovery issues. Section V discusses the constitutional implications surrounding e-discovery in criminal matters. Sections VI and VII discuss a proposal for a “balancing test” and possible pretrial discovery tools for the exchange of ESI beyond that which is contemplated in more traditional rules of criminal procedure currently followed by the courts. . .
Petitions for protection from domestic abuse, often referred to as civil protection or restraining orders, are governed by Massachusetts General Laws Chapter 209A, also called the Abuse Prevention Act (APA or Chapter 209A). With the passing of the APA in 1978, Massachusetts was among the first states to respond to judicial intolerance of domestic violence claims. Massachusetts has since been at the forefront of many civil protections for domestic violence victims, including the provision of a timely, same-day hearing and other relief that eases the burden on petitioners in need of immediate remedies. The APA was designed to give domestic violence victims an effective legal remedy and to protect victims from future incidents of abuse through simplified and accessible judicial procedures for obtaining civil protection orders. . . .
Courts have been increasingly asked to expand physician liability for loss of statistical chances of survival or better outcome. The request has been made pursuant to the perceived right of the judiciary to conform the common law to the changing needs or the “felt necessities of the time.” The loss of chance doctrine raises fundamental questions as to the appropriate limits of judicial policymaking in the area of physician liability. Indeed, recognition of loss of chance as either a theory of causation or a cognizable harm marks a notable judicial expansion of physician liability with significant ramifications for both tort law and health care in general.
The two state supreme courts to have last addressed the issue reached polar opposite conclusions despite strikingly similar facts and medical issues. While the two decisions are perhaps a poor comparison to Dickens’s masterful Aeschylean tragedy, set amid the fortunes and misfortunes of Paris and London in 1775, they do depict “a tale of two cities” as to physician liability. Reduced to their core, the decisions represent the divergent views of the judiciary’s common-law authority and demonstrate the debate over the proper limits to judicial expansion of physician liability based on the “public policy” auspices of the common law. . .
A trustee holds legal title to property for the benefit of another, and consequently has the power to bring actions at law against third parties who harm the trust property. These legal actions are restricted by the statute of limitations applicable to tort or contract matters. The trustee is also personally liable in equity to the beneficiary for any internal breaches of fiduciary duty, such as a breach of the duty of loyalty. Equitable actions by beneficiaries against trustees have typically been subject to the doctrine of laches, which requires the beneficiary to bring suit within a reasonable time after gaining actual knowledge of the trustee’s breach. In O’Connor v. Redstone, the Supreme Judicial Court of Massachusetts considered whether a successor trustee’s knowledge of a predecessor trustee’s breach of fiduciary duty is sufficient to begin running the statute of limitations against beneficiaries who have no actual knowledge of such breaches. In a departure from common-law principles pertaining to the separation of legal and equitable claims, the court held that the statute of limitations runs against the beneficiary when the successor trustee knows of the predecessor’s breach. . .
Pursuant to the Americans with Disabilities Act (ADA), an employer may not discriminate against an employee on the basis of a disability with respect to most aspects of employment, including the provision of fringe benefits. In order to have standing to bring suit under Title I of the ADA (Title I), a plaintiff must be a “qualified individual” with a disability. In McKnight v. General Motors Corp., the United States Court of Appeals for the Sixth Circuit considered, in light of the United States Supreme Court’s holding in Robinson v. Shell Oil Co., whether disabled former employees have standing to bring suit under Title I “against their former employers for discrimination with respect to the payment of post-employment fringe benefits.” The Sixth Circuit held that Title I unambiguously excludes former disabled employees and denied standing to the plaintiffs. . .
Congress enacted the Freedom of Information Act (FOIA) in 1966 to allow private citizens wide access to government information protected by federal agencies. In an effort to enable greater public access to government documents, Congress amended FOIA in 1974 to include a provision awarding attorneys’ fees to any individual who substantially prevails in an action requesting agency information. In Davy v. Central Intelligence Agency, the United States Court of Appeals for the District of Columbia considered whether an author who publishes a book based, in part, on information obtained from the Central Intelligence Agency (CIA) in partial satisfaction of his request under FOIA is entitled to attorneys’ fees. The majority awarded the author attorneys’ fees because he substantially prevailed in the earlier litigation, his interest in the information sought served a public benefit, he was not motivated entirely by commercial interests, and the CIA did not present a reasonable basis to deny disclosure of the information. . .
The Sixth Amendment to the United States Constitution provides a criminal defendant with the right to a trial by an impartial jury. If a jury convicts a criminal defendant, the United States Sentencing Guidelines (Sentencing Guidelines) provide guidance to federal judges for determining sentence length. In United States v. White, the United States Court of Appeals for the Sixth Circuit considered whether a district court violates the Sixth Amendment when it uses conduct of which the jury acquitted the defendant to enhance the defendant’s sentence. The court, in a 9-6 opinion, held that the district court did not violate the defendant’s right to a jury trial by basing sentencing enhancements on acquitted conduct. . .
The Fourth Amendment guarantees the right of the people to be free from unreasonable searches and seizures. The United States Supreme Court created the exclusionary rule, which requires suppression of evidence obtained in violation of the Fourth Amendment when the potential to deter future police misconduct outweighs societal costs of excluding the evidence. In Herring v. United States, the Court considered whether to employ the exclusionary rule to suppress contraband found during a search incident to arrest by an officer who reasonably relied on an assurance of an outstanding warrant because of the negligent bookkeeping error by another law enforcement agency. In a five-to four decision, a majority of the Court held that the exclusionary rule would not have a sufficient deterrent effect on isolated incidences of negligent bookkeeping, and therefore affirmed the district court’s decision to decline application of the exclusionary rule. . .