The Wall Street Journal | February.11.2015
Billy Jacobson, a partner in Orrick’s white collar & corporate investigations group and a former Assistant Chief for FCPA Enforcement in the Fraud Section of the Department of Justice’s Criminal Division, recently spoke with The Wall Street Journal about the aggressive tactics used by government investigators to crack down on alleged FCPA violations, including secretly recording conversations between executives and corporate counsel-turned-informants.
Mr. Jacobson noted, “There is definitely a risk that the jury will get turned off by this type of tactic.” Nonetheless, despite some earlier missteps in which investigators overstepped their bounds, resulting in cases being dismissed, it appears that the use of secret recordings is not going to end any time soon. Mr. Jacobson agreed, noting, “That’s not going to stop just because of a few setbacks.”
However, because of issues such as attorney client privilege, the use of general counsel as wired informants is seen as a particularly aggressive tactic that may be distasteful to some jurors. “Jurors want to hold the government to a higher standard. They don’t want to think of the government using underhanded or deceptive tactics,” Mr. Jacobson said. “They want to think the government is above all that.”
Mr. Jacobson noted that when prosecutors are presenting secret recordings as evidence, the most important thing to do is to not give jurors a false expectation that the recordings contain a clear-cut admission of guilt. Rather, prosecutors need to clarify that the recordings should be examined alongside corroborating evidence. When used in that context, a recording “is maybe the most powerful form of evidence you can have,” he concluded.