The breadth and reach of federal criminal statutes, such as mail and wire fraud, conspiracy, money laundering and securities fraud pose a danger to defendants charged in civil cases with some form of misconduct. The danger is especially acute when a parallel criminal investigation is ongoing or the realistic threat of one exists. This is particularly true in SEC cases as virtually every intentional violation of the federal securities laws is actionable both civilly and criminally.
Criminal defense attorneys frequently advise their clients to consider asserting their Fifth Amendment privilege as a protection in such cases. This is a particularly difficult judgment call in view of the fact that some assertions of the privilege can be used as evidence in a civil proceeding, often hamstringing the ability to defend in those cases. Many corporations also look askance at such invocations and terminate employees who rely upon this important constitutional right.
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