Sunday, June 19, 2011
FCPA Trial Tactics -- Part 2
I wanted to return to the FCPA criminal trial and address more trial tactics.
Let's start with jury selection. There is no doubt that the government has been successful in FCPA criminal trials, although frequently the charges are brought with other criminal charges, thereby increasing the chance for victory on some counts, which is all that really matters.
As a former federal prosecutor in the District of Columbia, I heard the refrain over and over -- "you win your case in jury selection." I never bought that theory. (Frankly you won your case in the grand jury, if you built a strong case, locked your witnesses in and neutralized the obvious defenses).
No one can argue that jury selection is important but most of it depends on your gut sense of people, your ability to read people and to understand how you communicate with people -- what are your strengths and weaknesses? You need to build trust with jurors -- showboats rarely do, while competent, fair and aggressive attorneys usually do.
There are some obvious rules about who will help you and who will not -- law enforcement, previously accused individuals, teachers, lawyers, and professionals with little understanding of the criminal justice system. A key consideration is what is your defense going to be -- entrapment? lack of intent? untrustworthy cooperators? A technical defense requires a different jury strategy than a broader defense of cooperating witnesses or entrapment. The jury's attitude towards law enforcement is always a critical issue to focus and prioritize.
A key consideration at the outset is will your client testify? That will depend on a number of issues: What advantages are there and what are the disadvantages? In general, the stronger the case the more likely your client will have to testify. What impeachment evidence exists against him? The analysis will depend on where your client falls in the culpability story -- was your client the mastermind or the small fish?
One other significant issue when facing an FCPA case is explaining the crime. Many jurors may be surprised to learn that bribing foreign officials is a federal crime, especially where the bribe taker goes free. That is a big inconsistency which has to be emphasized.
But there is a big risk when going to trial on a bribery case. If the government has evidence that your client directly profited from the bribery scheme and the government can show this in tangible form with evidence of the trappings of money -- cars, boats, trips, bank accounts, houses or other signs of wealth -- watch out!!!
Such evidence is powerful with a jury who will see your client as a schemer, a fraudster and a briber. Jurors think your client cheated the system, while they comply each and every day working hard to make a living.