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American Bar Association

Criminal Litigation



The Rise of Revenge Pornography and Its Damaging Effects

By Farrah Champagne

Sharing of intimate photos online without permission has become increasingly trendy.

Fraud, Abuse, and the Value-Based Payment Regime: Is New Thinking Needed?

By Jeremy D. Sherer

The structure of healthcare payment in the United States is changing.

Medicare Fraud: A Historic Takedown

By Ariella Cohen

The Affordable Care Act provides tools and resources to fight federal healthcare fraud.

Delaware Capital Punishment First Domino to Fall under Hurst

By David I. Schoen

Delaware strikes down the death penalty as unconstitutional under Hurst.

Rule 801(d)(1): The Admissibility of Prior Consistent Statements

By Cheryl D. Stein

Every prior consistent statement offered to rehabilitate a witness is defined as nonhearsay, even when the witness has not been accused of fabrication.

Lawful Searches by Bankruptcy Trustees

By Thad Davis and Peter Bach-y-Rita

A growing body of law has expanded the powers of the bankruptcy court to authorize home searches for the discovery of hidden assets or cash.

Nonconfrontational Self-Defense and the Imminent Threat Requirement

By Farrah Champagne

What constitutes an imminent threat for self-defense purposes?

Is Proximate Cause Being Eroded in Determining Restitution?

By Dennis S. Medica

The first legal challenge to U.S. Coast Guard's complex restitution calculation.

Assaults and Life

By Kele Onyejekwe

When the victim of an assault dies from the strike, only the homicide remains. Courts that disregard this rule violate the prohibition against judicial creation of crimes.

Substance Abuse: A Perspective for Use in Plea Bargaining

By Ralph Guderian

Attorneys who are educated about substance abuse can offer viable alternatives to conviction for defendants accused of alcohol-related crimes.

Indirect Criminal Contempt

By Robert S. Held

One court's disregard for First Amendment rights highlights the need for education on due process requirements for indirect criminal contempt.

Expunging Criminal Records Promotes Justice

By Kele Onyejekwe

The expungement of a criminal record allows your client to move forward from a past mistake to pursue a full civic life.

Supreme Court Sidesteps First Amendment, Voids Criminal Conviction

By Farrah Champagne

Violent posts on Facebook: What constitutes a true threat and guilty mind?

Criminal Appeals for the Mostly Civil Lawyer

By Lara O'Donnell and Sonia O'Donnell

Whether you are a young lawyer, or a not-so-young lawyer, how do you tackle the first appeal?

Prosecuting Domestic Violence Cases

By Farrah Champagne

An examination of mandatory arrest and no-drop policies in the prosecution of domestic violence cases.

Federal Appeals Courts Must Exercise Jurisdiction over Decisions of the BIA

By Kele Onyejekwe

The Supreme Court's decision in Mata v. Lynch continues immigration law's march into the mainstream of American law.

Will the Court Define "Actual Damages" in the OPM Cyber-Attack Lawsuit?

By Matthew A.S. Esworthy and Aaron M. Danzig

What are actual damages under the Privacy Act of 1974 in a massive data breach? AFGE's class action against OPM may provide an answer.

Sustainable Growth Rate Legislation Refines Civil Monetary Penalties for Gainsharing

By Alix Pereira

Recent laws suggest that hospitals will be granted latitude to implement gainsharing agreements under specific circumstances.

Not Guilty But Might As Well Be: Ending Acquitted Conduct Sentencing

By Dillon Malar

Congress should eliminate acquitted conduct sentencing, as the practice goes against the basic assumptions of criminal procedure.

"Equalizing" the Negotiation Process with a Trial-Ready SEC

By Thad A. Davis and Nicola M. Paterson

There are options beyond trial or settlement in the new "broken windows" era.

Protecting the Attorney-Client Privilege in Foreign Investigations

By Jane Shvets and Blair Albom

Foreign companies are often deprived of the attorney-client privilege.

Searches and Seizures of Foreign Email Servers: Microsoft v. United States

By Theodore G. Fletcher

Does the Stored Communications Act apply beyond the borders of the United States?

The Second Circuit Raises the Bar for Government Insider Trading Prosecutions

By Grant Fondo and Jessica Adams

The business community can expect prosecutors to pause before bringing the next high-profile insider-trading case.

The Serial Comma in Interpreting Criminal Statutes

By Kele Onyejekwe

The placement of a comma can be critical in a criminal statute.

LIFO vs. FIFO: A Red Herring?

By Laura Robinson

The impact of the mechanics of matching purchase-and-sale transactions in estimating class damages is examined.

Lincoln's Second-to-Last Murder Case: People v. Patterson

By Travis H.D. Lewin and Tyler P. Hite

It seemed to be a clear case of self-defense that Abe could not lose, but he did. Was it, in fact, a case he could not win?

Five Tips for Developing and Presenting Visuals to Judges and Juries

By Jeremy T. Brown

Forget bullet-point lists. Learn how to really communicate with jurors.

Ethical Issues for Corporate Counsel in an Internal Investigation

By Michael T. Dawkins

Clear identification of corporate clients will assist lawyers in carrying out the duty of loyalty while maintaining client confidentiality.

Foreign Corrupt Practices Act 101

By Felicia C. Quentzel

A basic guide to the provisions of the FCPA and how it is enforced.

Traffic Stops Based on Mistake of Law: Are They Constitutional?

By LaKeisha R. Randall

In Heien v. North Carolina, the Supreme Court could vastly expand police officers' discretion.

The Young Lawyer's Guide to Indigent Defense

By Cleveland M. Patterson III

A few pointers for young attorneys on how to represent indigent defendants where there is no local public defender's office.

When Federal Agencies Are the "Same Party" under FRE 804(b)(1)

By Thad A. Davis and Leslie A. Wulff

The hearsay exception for prior testimony under FRE 804(b)(1) requires that the evidence being offered is being used against the same party or a party who had a similar interest in the litigation. Federal courts have interpreted this requirement differently.

Recent Cases Limit Government's Ability to Search Phones, Computers

By Aaron M. Danzig

A modern interpretation of the Fourth Amendment?

U.S. v. Houser: Bellwether for Civil FCA Theories in Criminal Prosecutions?

By Jerry Friedberg and Amanda Touchton

Future cases will test the extent to which theories of liability that have been accepted in civil FCA cases may also form the basis of criminal prosecutions.

The U.S. Sentencing Commission's War on Drugs

By Vadim A. Glozman

Recent amendments to the Federal Sentencing Guidelines are consistent with Attorney General Holder's agenda, and will allow courts significant discretion in reducing sentences of qualifying defendants.

A Look at Retroactive Reduction of Drug-Trafficking Sentences

By Dillon Malar

The amendments to the Federal Sentencing Guidelines were approved to be retroactive and will create challenges for the system when the approximately 60,000 expected sentence-reduction motions are made.

Blurred Lines: Disgorgement, Forfeiture, and Punishment

By Jay Musoff, Nathan J. Muyskens, and Emily H. Stone

The Second Circuit has blurred the line between the equitable nature of disgorgement and the punitive nature of forfeiture.

Fundamentally Wrong: The Consequences of Prosecutorial Cognitive Error

By Emily M. Smith

Cognitive shortcuts can lead to wrongful convictions.

Practice Tips for Mitigating Data-Breach Risk and Liability

By Michael T. McGinley

Six critical steps businesses can take to prepare for a cyber-attack.

SCOTUS Permits State-Law Securities Class-Action Suits in Limited Situations

By Kenneth C. Pickering

The door is open where the claims do not involve a "covered security" as defined by the Securities Litigation Uniform Standards Act.

United States v. Cuti and Lay/Fact Witness Opinion Testimony

By Stanley A. Twardy Jr. and Daniel E. Wenner

Second Circuit rules on "what-if-you-had-known" questions posed to accountants called as fact witnesses but not as expert witnesses.

Introducing Email Evidence at Trial

By Ryan Malkin

It is more than likely that emails were sent or received that will assist you at trial.

Fighting Medicare Fraud under the False Claims Act

By Lauren Perkins Allen

A qui tam action under the FCA effectively thwarts those who commit Medicare fraud.

Rebutting the Fraud-on-the-Market Theory

By Peter M. Saparoff, Alec J. Zadek, and Bradford Hillman

Lessons learned from Gamco Investors, Inc. v. Vivendi.

Conscious Avoidance as a Basis for Criminal Supervisory Liability: A Viable Theory?

By Joseph W. Martini and Melissa Fernandez

Recent charges indicate that prosecutors may seek to expand the use of conscious avoidance to hold supervisors liable for an increasing range of criminal liability.

What the Holder Memo on Mandatory Minimum Drug Sentences Means

By Darren M. Gelber

It is essential that federal criminal defense attorneys assess and assemble as much information as possible on the defendant's criminal history.

Glitches Within the CFAA's "Exceeds Authorized Access" Language

By Aaron M. Danzig and Matthew A. S. Esworthy

Defendants facing charges under the Computer Fraud and Abuse Act are affected by differing interpretations of a specific provision.

The Intersection of Off-Label Promotion and Free Speech

By Gerard T. Leone Jr., Hannah Bornstein, and Conor S. Harris

First Amendment protection may extend to "truthful" off-brand promotional activities, but the issue then becomes what qualifies as "truthful."

First Federal Charges Brought Following Referral from CFPB

By Jill Baisinger and Erin Yates

The first indictment has been brought stemming from the controversial bureau created by the Dodd-Frank Act of 2010.

FCPA, Due Process, and Jurisdictional Overreach by the DOJ and SEC

By Bruce J. Casino and Scott Maberry

The FCPA itself and due-process concerns likely limit the statute's expanded extraterritorial reach.

The LIBOR Cases: A New Prosecutorial Model?

By Ari D. MacKinnon

Corporate entities and defense attorneys alike should be on guard for a shift away from the DPA/NPA model.

Challenging Indictments Without Appearing in the United States

By Kimberly Murphy

Is there an out for foreign criminal defendants?

Federal Contractors Face Increased Risk of Suspension and Debarment

By Jason M. Silverman and Felicia C. Quentzel

What suspension and debarment are, why you should be concerned, and what to do about it.

Punxsutawney Phil and the Whole Truth

By Mark L. Greenblatt

How true statements, blank spaces on forms, and half-truths constitute false statements under 18 U.S.C. § 1001.

Best Practices for Advising Clients on Cyber-Security

By Amanda Marie Baer and Kenneth C. Pickering

Checklists for guarding against and responding to a data breach.

Financial-Fraud Enforcement on the Rise

By Laura O. Robinson

Trends show that the SEC, DOJ, and FBI will continue to increase their focus on financial-fraud enforcement in 2013.

The CFTC's New Era of Aggressive Enforcement

By Vasu B. Muthyala and Laura L. Conn

Recent provisions in the Dodd-Frank Act have expanded the CFTC's enforcement opportunities and have brought on increased enforcement actions.

What's in the New FCPA Guide

By Bruce. J. Casino and Scott Maberry

Highlights from the 120-page Foreign Corrupt Practices Act Guide published by the DOJ and SEC.

Practice Pointers for Deponent and Witness Preparation

By David Perrott

General tips and potential remedies for common problems that arise.

Brady Summaries and the Obligation to Disclose Favorable Evidence

By Steven F. Molo and Lucas M. Walker

What exactly must prosecutors turn over to criminal defendants?

JETWG Recommendations: Cooperation in E-Discovery

By Clifford E. Nichols III and Stanley A. Twardy Jr.

A new set of best practices aims to reduce cost and inefficiency when producing ESI.

Preserving Privilege During an Internal Investigation

By Daniel S. Park

To maintain privilege is to maintain options.

Can SEC Administrative "Findings" Be Used in Subsequent Cases?

By Peter M. Saparoff, Alec J. Zadek, and Stefanie Giuliano Abhar

Entities and individuals should be aware of the risks and potential implications before entering into any agreement with the SEC.

Can Insurance Help Ponzi Victims?

By Charles T. Lee and Mandiey Winalski

The jurisprudence relating to insurance coverage for Ponzi losses is developing as claims make their way through the courts.

Civil Discovery Standards Influence New Criminal Guidelines

By Anne M. Chapman and Joseph N. Roth

The new recommendations are a step toward formalizing practice and expectations involving ESI in federal criminal cases.

The Pitfalls of Parallel Proceedings

By D. Grayson Yeargin and Lindsey M. Nelson

The safest path through one investigation may lead to a dead end in another.

The Risks and Benefits of Proffer Agreements in Parallel Proceedings

By Kenneth C. Pickering

Granting "queen for a day" immunity can have significant collateral consequences.

U.S. v. Jones Leaves Important Digital Privacy Questions Unanswered

By Nicole Jacoby

Just how reasonable is our expectation of privacy?

Violations of Payment/Participation Conditions as Predicates for False Claims

By Katherine A. Lauer, Jason M. Ohta, and Amy E. Hargreaves

The distinction between a condition of payment and a condition of participation should continue to be particularly significant in FCA actions.

Lessons from the Failed Prosecution of In-House Pharma Counsel

By Ronald J. Friedman and Michelle Peterson

As recently experienced by a pharmaceutical associate general counsel, the line between fair advocacy and criminality is not a settled matter.

Reconsidering the Extraterritorial Reach of the Mail and Wire Fraud Statutes

By Norman Moscowitz

Defense lawyers are now armed with better arguments, following Morrison, for challenging the prosecution of cases that are extraterritorial.

The Shifting Grounds of the Constitutional Right to Confrontation

By Emily R. Schulman and Melissa Turitz

The majority of the Supreme Court left open for interpretation how, if at all, courts should treat reliability when conducting a primary purpose inquiry.

Grand Jury Subpoenas That Reach Around the World

By Stanley A. Twardy Jr. and Doreen Klein

Recent decisions enhance prosecutors' ability to conduct international investigations at a time when the DOJ is aggressively targeting international antitrust and FCPA violations.

The SEC Is Preparing for a Greatly Enhanced Reliance on Whistleblowers

By Anthony Pacheco, Sigal P. Mandelker, and Massiel Pedreira

Since the passage of the Dodd-Frank Act, white-collar and compliance lawyers alike have been consumed by the potential consequences of the elevation the role of whistleblowers.

The Ninth Circuit and Arizona's Senate Bill 1070

By Mahsa Aliaskari

One day before the law was set to take effect, the district court granted a preliminary injunction, blocking certain provisions of the law from going into effect.

FCPA Enforcement Actions Against the U.S. Entertainment Industry

By James Clare

The recent conclusion of an FCPA enforcement action against a Hollywood couple presents a stark warning to an industry that was not traditionally on the FCPA's radar.

Prosecuting the Responsible Corporate Officer

By Lisa Krigsten

A recent FDA announcement indicates a likely shift in agency priorities and has created a revived interest in the responsible-corporate-officer doctrine.

Barefoot Insole Impressions: The Curious Case of Mr. Jones's Feet

By Ben Lewis

Jeffrey Louis Jones has two very peculiar feet. Mr. Jones's feet are so remarkable that they have twice caused him to be sentenced to death.

Healthcare Reform Law Expands Criminal Liability and Penalties

By Scott Bennett

The health-care reform law gives the federal government significantly more resources and legal tools for investigating and prosecuting health-care fraud.

Corporate Cooperation and the Attorney-Client Privilege

By Jonathan D. Polkes & Tamika R. Montgomery

Internal investigations, and the Department of Justice's response to them are the subject of an upcoming presentation of the ABA’s Criminal Litigation Committee.

Supreme Court to Examine “Honest Services” Mail and Wire Fraud

By Marcus A. Asner, John A. Freedman, and Lucy S. McMillan

The High Court is reviewing three separate cases concerning the scope of "honest services" mail and wire fraud under 18 U.S.C. § 1346.

Ninth Circuit Reaffirms Strict Interpretation of the Attorney-Client Privilege

By Anjali Chaturvedi and Lynn Fiorentino

Panel denies Ruehle's petition for panel rehearing and petition for rehearing en banc on November 5, 2009.

FCPA Enforcement Priorities: The Summer of Individual Convictions

By Anjali Chaturvedi and Edward C. O'Callaghan

The convictions highlight the DOJ focus on criminal conduct of individuals in international business dealings.

Make Your Arguments Memorable

By Kenneth C. Pickering and Christopher Civali

Recipients of Federal Money Beware: Recent Amendments Expand False Claims Act Liability

By Adam S. Lurie

U.S. v. Bourke FCPA Prosecution: DOJ Litigates Willful Blindness Theory and Prevails

By Joseph P. Covington, Iris E. Bennett, and Sean J. Hartigan

Federal Criminal Defendants: Ask Not What Madoff Will Do to You, Ask What You Can Do under Booker

By Joshua C. Gillette

U.S. v. The Williams Companies: The DC Circuit Rejects Selective Waiver in Corporate Prosecutions

By Matthew L. Mustokoff

Managing the Fallout: What to Do When You Learn That Your Employee Has Been Talking to the Government

By John T. Graff and John T. McInnes

Combating Cybercrime  | PDF

By Aaron Danzig

Erosion of Attorney-Client and Work Product Privileges  | PDF

By Marissel Descalzo

Congressional Investigations: Understanding and Surviving the Potential Pitfalls PDF

By Laurie S. Fulton and Steven R. Ross

Crossing the Line – Responding to Prosecutorial Misconduct  | PDF

By Criminal Litigation Committee

Corporate Cooperation 2.0: The Post-TARP Era

By Don R. Berthiaume

Internal Investigations: Ten Ways to Avoid Inadvertent Disclosure of Confidential Information

By Thomas A. Gilson and Jon Monson

Supreme Court Clarifies the Role of the Sentencing Guidelines in Two Recent Decisions

By Kenneth C. Pickering and John T. Graff

Opinion Piece: Increased Victim Participation Furthers Justice In Criminal Litigation

By Jordan M. Hyatt

Opinion Piece: Expanding Victim Participation Raises Concerns about Unfair Advantage

By Emily S. Crandall

The Honest Services Statute: Scalpel or Axe?

By D. Grayson Yeargin

United States v. Fort: Ninth Circuit Clarifies the Relationship Between Rules 16(a)(1)(E) and 16(a)(2)

By David E. Roth and Brian L. Flack