In most federal white collar criminal investigations, the government seeks the assistance of cooperating witnesses to provide clarity and context. Individuals and entities that cooperate can help the government pinpoint critical information, including documents and witnesses, and explain criminal schemes from an insider’s perspective. The government’s ability to attract cooperators is driven by its authority to control the types and number of criminal charges brought against a cooperator, and to move for a reduced sentence based on the cooperator’s substantial assistance in the investigation and prosecution of others.
The decision to cooperate or to refuse to cooperate requires a fact-specific inquiry. After a client makes this decision, it is difficult to change course. For example, once cooperation begins, the client must make admissions to the government that will typically preclude certain trial defenses. Conversely, if a client refuses to cooperate for a period of time, the government may no longer be interested in extending any benefits in exchange for cooperation.
This article explores key issues counsel should consider when determining whether to recommend that a client cooperate in a federal white collar criminal investigation. Specifically, it addresses:
- The main benefits and risks of cooperation.
- The factors to evaluate when an individual is considering whether to cooperate.
- The factors to evaluate when an entity is considering whether to cooperate.
- The potential ramifications of not cooperating.