Document Type

Article

Publication Date

2008

Abstract

The United States Department of Justice has come under attack in recent years because of its increased attention to, and prosecution of, crimes committed during the course of its investigations — obstruction of justice, perjury, and making false statements. These crimes have been labeled “cover-up” or “process crimes,” and the charging prosecutors have been criticized as bringing such charges only against high-profile defendants as to whom there is insufficient evidence to charge the “more serious” underlying offenses that prompted the initial investigation. Some critics have gone so far as to label these prosecutions “vindictive.” Much of this criticism is misplaced. These are serious — not minor — crimes, wholly deserving of prosecutorial attention and which, if ignored, threaten to undermine the integrity of our criminal justice system. In our adversarial system of justice, individuals have near-absolute rights to refuse to testify or to refuse to speak to investigators. Ignoring perjury and obstructive conduct poses a risk of diminishing the significance of these important rights. It is also clear, however, that federal prosecutors must exercise restraint and refrain from attempting to characterize legitimate defensive conduct as obstruction. Criminal charges should not be brought against individuals when their alleged obstructive conduct is not sufficiently tied to an official proceeding. It is troublesome when, for example, prosecutors stretch obstruction law to attempt to reach allegedly false statements made in the context of an internal corporate investigation. As the Supreme Court held in United States v. Aguilar, there must be a sufficient nexus between the alleged obstruction of justice and the judicial or grand jury proceeding that the accused is alleged to have intended to obstruct.

Source Publication

Georgetown Law Journal's Annual Review of Criminal Procedure

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