Wrap it Up

Packaging Your Case for Prosecution

By Bruce A. Dean, J.D., CFE, CPP

When you decide to prosecute a fraud suspect, don't expect a prosecutor to accept your case unless you bring a professional package to the referral meeting.. 

You've detected fraud in your company, conducted interviews, gathered incriminating evidence, and have one strong suspect. Now here comes the big question: Do you prosecute?

Egregious cases of fraud and theft, replete with persuasive evidence, warrant a referral for possible prosecution. However, evidence in other cases may fall short of the elevated threshold of proof required for criminal proceedings. Some cases just don't belong in the criminal justice system because criminal prosecution isn't appropriate. Certain cases may be processed more effectively within the civil legal system or, in some instances, an irregularity may look like a crime but it may not really be a crime.

If you submit a case, a prosecuting attorney will review it carefully and methodically to decide after reviewing the evidence and circumstances if it can be prosecuted successfully under applicable law. But don't expect the prosecutor to accept the case unless you present a professional package containing detailed investigative reports, sufficient evidence, exhibits, and other items.

Prosecuting attorneys are experienced in criminal law and procedure and also may be adept at handling complex fraud and theft cases. They often are assisted by staff investigators and financial analysts with experience in economic crime cases. However, all prosecutors count on you to tell them what you've discovered and to assist them in the development of a strong criminal case.

Before we describe the components of a successful prosecution package and how to prepare for the first referral meeting with the prosecutor, let's look at a short primer on the American criminal justice system.

Criminal Case

A criminal case is begun "in the name of the state"; it isn't a private case such as a lawsuit for money damages. A crime is an act that is disdained by society as a whole. Legislatures create laws (statutes or codes) to prohibit conduct that society deems illegal. Criminal statutes also specifically provide for the punishment of offenders, thereby hopefully deterring criminal activity.

The highest burden of proof of any system of American justice, "guilt beyond a reasonable doubt," is applicable in criminal cases. This is a much higher standard of proof than civil proceedings in which a mere "preponderance of the evidence" is sufficient.

If a criminal case proceeds to trial, all jurors must be convinced of a defendant's guilt or innocence. No "abstentions" are permitted. If the jurors cannot agree, the judge must declare a mistrial. Contrast this with civil cases in which only a majority of the jurors must agree.

If you are seeking only restitution, you may wish to consider other, more efficient, legal remedies. Criminal law doesn't provide for such measures as attachment of an individual's property or the withholding of wages ("garnishment") to satisfy a judgment. If you do decide to pursue legal options in addition to prosecution, be certain to notify the prosecutor at once. Important: It's improper for a private attorney to threaten or to commence a criminal case to obtain an advantage in a civil case.

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