Criminal Investigations
Mary Butler, RLA, U.S. Embassy-Kyiv and Paul Pelletier, Defense Advocate
Miami, FloridaUSA
Washington, District of ColumbiaUSA
“Better that a guilty person goes free than that an innocent man is convicted.”
American Criminal JusticeFilms
Abramoff case
Gaining cooperation of insiders through plea and cooperation agreements is the key to investigating and prosecuting complex crimes
NOT THE ROLE OF COURT To find evidence to support
conviction
To find the facts and arrive at the verdict (“speak the truth”) independently from the parties subject to procedural safeguards and protections
Safeguards include Ban against use of confessions Prohibition against use of evidence
obtained illegally Prohibition of use of evidence derived
from illegally obtained evidence:• Without a court warrant• Obtained after time deadlines for
investigation Right to defense counsel even if
can’t afford to hire counsel
Historically, Key Differences Between U.S. and Ukrainian Systems
Role of the Prosecutor• Works closely with Agents investigating
case• Drafts criminal charges• Represents United States in Court• Works with witnesses and victims
No General Supervision
NEW CPC Requires one prosecutor per case Prosecutors to guide investigations Prosecutors are responsible to ensure
that inculpatory and exclupatory evidence is produced or the evidence should be excluded
SpecializationUSA: vertical specialization
substantive specialization with specific experience and detailed knowing of
the case
Ukraine: horizontal specialization
corru
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gani
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crim
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finan
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procedural stage division
operative stage
investigative stage
trial
Requirement of Specialization of Prosecutors
Specialization• Reactive Crimes Unit• Drug Unit• Complex Fraud Unit• Health Care Fraud Unit• Organized Crime and Gang Unit• National Security Unit• Public Corruption Unit• Asset Forfeiture Unit
GOAL of INVESTIGATIONS Collect evidence which is admissible
at trial to prove guilt or to impeach witnesses
Conclusion of investigation Focus on whether you have gathered
sufficient evidence to prove the guilt beyond a reasonable doubt
Charge the person, if the evidence is sufficient or close investigation permanently or unless other evidence is uncovered
What is Admissible Evidence?
Direct evidence Circumstantial
evidence Strict limits on out
of court statements Strict limits on
illegally obtained evidence
Very similar in Ukraine
Not Evidence in USA or Ukraine
NotesEvidence can be presented only in court
Dossier (delo)
2 kinds of cases
H i s t o r i c a l (murder)
Crime is completed
R e a l t i m e(corruption)
Crime is conducted
Keys to successful criminal investigations
1) Police and prosecutors working closely together from the beginning of the investigation
a) concurrence is required by internal agency rules b) coordination required because court approval required
for some of the most intrusive techniques and prosecutors represent the police in court
(search warrants; wire taps; tracking devices, etc.)
c) leads to commitment to the case by the prosecutor2) Necessary to closely follow the procedural rules and law
to avoid suppression of evidence at trial3) Usually involves use of cooperating defendants4) Leads to collection of credible evidence that shows
motive and reasonableness of the government's action and arguments for guilt
Most powerful tool to investigate and prosecute complex crimes like corruption
Plea agreements to gain cooperation of defendants who have knowledge of an insider in past or on-going criminal activity
Suspect/ defendants enter into these agreements for sentence reductions, swifter resolution or cases or to gain agreement not to prosecute family members or others
It’s the Plea Agreements That make almost all of the
difference between soling a crime or not.
The “take down” day is also a key part of successful investigations
Coordinated effort to conduct interviews and searches simultaneously so that evidence is preserved and people don’t have opportunities to coordinate their stories
Takedown day
Arrest warrant
Takedown day
Search warrant (home, office,
computer)
Takedown day
Seizure warrant (freeze assets,
banking accounts, real
estate)
Plea Agreements with cooperation make the difference between whether cases are made or not in complex crimes.
In the US:1) Most cases are resolved through guilty
pleas;2) Of the cases that go to trial, most are tried to jurors and about 89 percent result in guilty verdicts in the federal system;3) Historical disparity in prison terms for white collar versus violent crime or
narcotics offenses;4) Lot's of crowded prisons of varying
degrees of security.
Cooperators of justice:Must be convinced of 3 ideas
You are in serious trouble; Only the prosecutor and law
enforcement can help you; Your cooperation will not get
you killed.
Cooperation agreement Criminal – agrees to plead guilty; Criminal – always will tell the truth; Criminal – will commit no more
crimes; Criminal - will meet with prosecutor
at his demand; Criminal - will testify in court.
Consequences of violating Agreement
If the agreement is violated, it is void (even if time has passed);
Everything said can be used against criminal;
Can also be charged with obstruction.
US law enforcement officers may present an opportunity to commit a crime as part of an investigation:
1) must have evidence that defendant pre- disposed to commit the crime;
2) usually use a cooperating defendant or
information from a cooperating defendant
- to establish predisposition; and - to design a scenario that the defendant
understands and is comfortable with
US prosecutors and investigators may also follow or join in a crime in progress
by introducing an under cover agent or cooperating defendant or by means including:• wire tapping phones without any
participant aware• recording individual conversations by a
participant • installing bugs in public places• Seizing trash • Placing gps devices on cars, boats,
planes
Undercover Operatives: 2 types
Police officers under cover
Criminals cooperating under plea agreements
All cases made through the use of plea and cooperation agreements –
A tool you now have in the CPC