Defending White Collar Criminal Cases

Successfully defending a white collar criminal case has many similarities to successfully defending any other criminal charge: it requires careful attention to the facts, diligent research of the law, and an ability to plan ahead by anticipating all of the myriad possibilities that can occur in the case, from start to finish.

With that said, there are important differences in the defense of white collar crimes compared to the defense of ordinary “street” crimes.  We go over some of those differences below.

The defendant’s intent is often the central issue at trial

The first important difference between white collar cases and other cases is the focus of the case.

In the American legal system, the vast majority of criminal offenses require proof of two things: an act, called the actus reus, accompanied by an intent, called the mens rea.  In the context of street crimes, such as drug dealing, assault, murder, or rape, the contested issue is often the actus reus—did the defendant actually commit the act? Once the act is proven, juries will almost always find intent.

In white collar criminal cases, the opposite is true.  Often, the disputed issue is centered not around the act (for good reason, because often there will be banking records, computer files, and similar documentation to prove that the defendant performed a transaction), but instead around the defendant’s intent behind those acts.  For example, did the defendant know a particular statement he made was false?  Did the defendant change a date on a document with “intent to defraud?”  Was the defendant’s offer of a plane ride to a government official intended as a bribe, or a gesture of good will?

Moreover, the kinds of intent that must be proven may differ from case to case. For example, in one case, the prosecutor may have to prove the defendant knowingly performed an act.  In another case, the prosecutor may have to prove that the defendant knew his conduct was unlawful. Appreciating the distinction between the different kinds of intent is crucial to successfully defending a white collar case.

The prosecution’s witnesses must be handled differently

Another difference is in the kinds of witnesses that are presented.  In white collar cases, the government will frequently rely on cooperator testimony to prove intent.  For example, the government may have a cooperator—who is trying to avoid prison or obtain a Rule 35 sentencing reduction—testify about an “understanding” he had with the defendant, or conversations he has had with the defendant.

Unlike cooperating witnesses in ordinary “street crime” cases, a cooperating witness in a white collar case may not have a criminal record, and may appear sophisticated and well-spoken to a jury. A skilled white collar crime attorney must take account of these factors to effectively cross-examine the government’s cooperating witness at trial.

Additionally, white collar cases will often involve expert testimony by experts from fields in accounting, finance, securities, insurance, and more.  These experts will often have impressive qualifications, may be professors in universities, and may even have received training on how to testify in court.  It is vital to understand the relevant experts’ fields, to obtain transcripts of any previous cases where they have testified, to review any literature they have written, and to have diligently prepared for the cross-examination.

The evidence may be industry specific

White collar crimes, unlike street crimes, often arise in a specific industry.  Business practices in that industry affect how evidence is interpreted or understood.  A particular action may be sinister in one business context, but completely benign in another.  Moreover, business practices in an industry or a firm may be relevant to understanding documents and records in a white collar case.  For example, if you did a task for a colleague, can you record in the company’s records that the task was performed by the colleague?  Does it make a difference if you were paid by the colleague to perform the task?  Does it make a difference if the industry was in healthcare, as opposed to I.T.?  What if insurance was involved in the billing process?  A proper white collar defense requires an understanding of the relevant industries involved.

The discovery is often voluminous

White collar cases often involve a large volume of evidence or “discovery,” such as business records, emails, reports, meeting memos, and more.  Even in a comparatively “simple” white collar case, the discovery often involve gigabytes of data and tens of thousands of pages of discovery.  In a complex white collar case, it is possible for the discovery to reach millions of pages of documents and terabytes of data.

The critical details often lie buried in this discovery, and it is up to the defense attorney to find those critical details and figure out how to build a case around them.  The prosecutor has a team of experienced agents who may have spent years reviewing the underlying documents, and a defense attorney will not be given a similar amount of time.  Therefore, it is important to work with an attorney who is experienced with reviewing large volumes of discovery and is able to quickly identify the important documents in the discovery.

Conclusion

White collar cases pose many special challenges, and it is important to be represented by an attorney who knows how navigate such cases, and has the skills to effectively handle the special challenges presented.