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NCJ Number: 211173 Find in a Library
Title: Making the Silent Speak and the Informed Wary
Journal: American Criminal Law Review  Volume:42  Issue:3  Dated:Summer 2005  Pages:985-994
Author(s): George Ellard
Date Published: 2005
Page Count: 10
Document: DOC
Type: Legislation/Policy Analysis
Format: Article
Language: English
Country: United States of America
Annotation: This paper describes and examines the impact of the Thompson Memorandum on criminal-law enforcement, intended to guide U.S. Department of Justice prosecutors in filing charges against a business organization by providing an incentive for businesses to cooperate in governmental investigations and potentially impairing the constitutional rights afforded American citizens.
Abstract: Issued in 2003 to all United States Attorneys within the Department of Justice, the Thompson Memorandum is designed to guide Department prosecutors as they make the decision whether to seek criminal charges against a business organization. It instructs officials to assess the authenticity of a corporation’s cooperation by considering the corporation’s timely and voluntary disclosure of wrongdoing, its willingness to identify the culprits within the cooperation, and its willingness to disclose the complete results of its internal investigation and waive attorney-client and work product protection. All in all, the potential to avoid indictment creates a strong incentive for business organizations to cooperate in government investigations. However, to prove a company’s cooperation under the Memorandum is to demonstrate the company’s willingness to disclose information, traditionally covered by attorney-client privilege. Cooperation in a criminal investigation implies a willingness to speak to prosecutors. The approach to law enforcement embodied in the Thompson Memorandum has increased the power of Federal prosecutors. The Thompson Memorandum, in giving business entities incentives to cooperate with the government, impairs the ability of natural persons to enjoy the rights the Constitution grants them, such as the fifth amendment, the privilege against self-incrimination by refusing to be a witness against themselves. The process governing the American law enforcement system has moved away from an accusatorial system, where society carries the burden of proving its charge against the accused, towards an inquisitorial system, where it comes from the accused person's own mouth.
Main Term(s): Corporate crimes
Index Term(s): Corporate criminal liability; Crime specific law reform; Criminal responsibility; Environmental offenses; Federal law violations; Law reform; Legislative impact
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