Trial by jury. It is the right of every American accused of a crime but one that is rarely exercised in white-collar cases. Last year, over 87 percent of defendants charged with federal fraud offenses plead guilty.[FOOTNOTE 1] Maybe the ultimate outcome for defendants facing criminal charges would be better if that changed.
This issue really concerns individual defendants. With the tremendous increase in the government’s use of deferred prosecution agreements, indictments — or at least the actual prosecution of indictments — of companies are rare. Some of the most notable corporate frauds of the past few years did not result in criminal convictions of the companies. On the other hand, as part of these agreements, companies are encouraged to investigate thoroughly and identify — some would say “offer up” — employees who purportedly participated in the wrongdoing.[FOOTNOTE 2] Therefore, it is the corporate executive, who usually has never come close to experiencing anything like this in his or her life, who faces the decision to fight or surrender.
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