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Regulatory: You’d better watch what you say

The role of the Fifth Amendment in cross-border investigations

The government increasingly has turned its focus abroad to cross-border investigations and prosecutions, garnering major headlines in cases involving the Foreign Corrupt Practices Act and global antitrust conspiracies. The United States often gathers evidence and seeks to take testimony in tandem with law enforcement personnel in other countries. When a corporate employee faces a request for a voluntary interview or even compelled testimony in one country, there is fear that the testimony will be made available to prosecutors or regulators in other countries.

Such a situation creates hard choices for institutions and individuals in the U.S. Space does not permit a full assessment of the many complicated issues related to cross-border investigations, but it is useful to review a few basic rules about the application of the Fifth Amendment’s privilege against self-incrimination in the context of international criminal and regulatory investigations, as a window into this broader and timely subject.

There are two exceptions to this general rule:

1. The statements must have been made voluntarily in light of the totality of the circumstances, and cannot have been obtained through means that shock the conscience.

Contributing Author

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Harry Sandick

Harry Sandick is counsel in the White Collar Defense and Investigations practice group at Patterson Belknap Webb & Tyler LLP. He served as an Assistant...

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Contributing Author

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Joshua Goldberg

Joshua A. Goldberg is a partner in the litigation department of Patterson Belknap Webb & Tyler and a member of the firm's White Collar Defense and...

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