White Collar Defense and Compliance : New Jersey White Collar Defense Lawyer & Attorney : Fox Rothschild Law Firm : Criminal Defense, Insider Trading, RICO, Consumer Fraud : New Jersey, New York City

Alain Leibman writes:

I was privileged on Saturday, March 24th, to speak as part of a panel addressing the ABA Business Law Section's annual meeting in Las Vegas, Nevada on the subject of "New and Evolving Threats from the Responsible Corporate Officers Doctrine."  The RCO doctrine permits misdemeanor prosecutions without any proof of intent whatsoever, where the defendant corporate officer holds sway over an area of corporate activity in which there has been a violation of law by someone else in the company.

The RCO doctrine began its germination in the federal Food, Drug and Cosmetic Act, where its use was approved in an 1975 Supreme Court case to charge an officer with product misbranding, even though the officer had no culpable knowledge of the offending activity.  Its use has gained steam in the last five years and the Department of Justice has employed the doctrine in seeking prosecutions of corporate officers in the environmental area, as well.

While misdemeanor prosecutions might be thought of as a low-level threat, based on the assumption that misdemeanants do not go to jail, recent developments suggest otherwise.  First, a recent series of prosecutions of officers of a medical device company in the Eastern District of Pennsylvania, in which those officers pled guilty to misdemeanor violations under the RCO doctrine, led surprisingly to significant terms of jail for each of them, albeit no more than the 12 month maximum allowable for a misdemeanor conviction.  Second, the Department of Health and Human Services has recently handed down draconian periods of exclusion for corporate officers of another health care company who had pled guilty to misdemeanor violations pursuant to the doctrine and had not received jail sentences; these exclusions from the industry for periods of 10 years and more would effectively end the careers of those officers if upheld.

In short, defense counsel and in-house counsel need to be cognizant of the dangers posed by prosecutors' aggressive use of this vicarious criminal liability doctrine, which marks a radical departure from the usual requirements of finding criminal intent (or at least negligence in certain environmental areas) before prosecuting.

(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)

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Much has been written in the academic and scientific literature about the accuracy, or apparent inaccuracy, of eyewitness identification, particular cross-racial identification. Some have called for a Daubert-like gatekeeper role for trial judges. But the Supreme Court last week in Perry v. New Hampshire clarified the test for the admissibility of eyewitness identifications without requiring any general gate-keeping function. In an opinion by Justice Ginsburg, the Court held that the Due Process Clause, under most circumstances, does not require a trial judge to screen eyewitness identification evidence for reliability before allowing the jury to assess its creditworthiness. The Due Process Clause only requires a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was procured under unnecessarily suggestive circumstances arranged by law enforcement.

In Perry an eyewitness was asked at the scene for a more specific description of the man that she had seen breaking into her neighbor’s car, and pointed to the defendant while he was standing next to a police officer in the parking lot where the car was parked. The witness had identified the defendant in the equivalent of what, if arranged deliberately by the police, would have been an improper one-man line-up. But the eyewitness had voluntarily and spontaneously identified the defendant without being asked by the police to identify him. Because there was no improper police influence affecting the eyewitness’s identification in this case, the Court held that the identification procedure was not suggestive and unnecessary, and that the eyewitness testimony was, therefore, properly placed before the jury without a preliminary judicial assessment of its reliability.

The Court also held that, even when a suggestive and unnecessary identification procedure is used, suppression of the resulting identification is not automatic. Where there has been improper police conduct, the trial judge must screen the identification evidence for reliability before trial. After screening the evidence for reliability, the judge should only suppress the resulting identification if the “indicators of [a witness’] ability to make an accurate identification” are “outweighed by the corrupting effect of the improper police conduct.” In other words, the trial judge should only suppress the identification evidence if the improper police conduct created a “substantial likelihood of misidentification.” Otherwise, the identification evidence should be submitted to the jury. 

(Jana Volante, Esq., the author of this entry, is an associate with Fox Rothschild LLP, based in our Pittsburgh, PA office. Her practice concerns white collar criminal defense and commercial litigation)

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