It’s a Crime (maybe) Outline1 Presented by Paul Grech, Jr.2 And Michael A. Robbins 1. A crime is reported – A crime is reported to the police department. a. It might be by the victim. b. It might be by mandated reporter. For example, a minor working on a movie set tells the teacher on the set. See, Child Abuse and Neglect Reporting Law (CANRA), Penal Code §§ 11164-11174.3. c. Generally, a patrol officer is sent out to create a report. d. Generally, the initial report is followed up by a detective. e. This may be followed up by a pretext call (a supposed victim calling at the direction of police and recorded). f. The case is submitted to prosecution for review (e.g., District Attorney, Attorney General). i. Counsel may wish to speak with prosecutor before filing decision is made. ii. Counsel may wish to disclose information to prosecutor favorable to the accused. g. If a determination is made to arrest the accused, negotiations with the prosecutor may include: i. Surrendering the accused without fanfare. (The prosecuting agency might not be telling the truth about this). ii. Pre-arrange posting of bail. (new bail statute enacted August 2018, effective October 2019). 1 © Paul Grech Jr. and Michael A. Robbins. 2018. 2 Paul Grech, Jr., Certified Specialist in Criminal Law, The Germania Building, 7095 Indiana Avenue, Suite 200, Riverside, CA 92506. (951) 682-9311. [email protected]. Michael A. Robbins, EXTTI, Incorporated, 153 Stagecoach Rd., Bell Canyon, CA. 91307. (818) 712- 0203. [email protected]. It’s a Crime (maybe) iii. The arresting agency may issue a press release. h. Law enforcement advises the victim there is no requirement that they speak with anyone else. 2. A complaint is raised to the employer – The employer determines to conduct an investigation (either internally or externally). a. The police or law enforcement instruct the employer not to conduct an investigation. If the employer nevertheless conducts the investigation, this is not obstruction of justice. See, California Penal Code §148 (to resist, obstruct, or delay a peace officer in the performance of his/her duties). Be mindful of 18 USC 1503 et seq. re: federal obstruction of justice. b. The employer’s affirmative obligations under the California Fair Employment and Housing Act, Calif. Gov’t Code §§12940 (j) and (k) require an investigation of harassment, discrimination, or retaliation. c. The employer’s affirmative obligations under Title VII. 29 C.F.R. § 1604.11(f) require an investigation of harassment, discrimination, or retaliation. d. If the police have advised the victim not to talk to anyone else, the employer still can attempt to interview the complaining party/victim. This is not obstruction of justice. e. If the police have not yet been contacted, should the employer contact the police? (See, mandated reporter, above). 3. A criminal attorney may become involved – a. To represent the accused. b. To assist the employer with the criminal process. For example, with issues like: i. Possible arrest of the accused. ii. Loss of reputation (of the accused and/or employer). iii. Negative publicity. iv. Perp walk. v. Expenses of bail. Page | 2 It’s a Crime (maybe) vi. Expenses relating to the criminal defense. c. To represent shareholders, partners, corporate officers, Board of Directors. 4. The employer determines to conduct an investigation – a. This could be internal or external. Conducted by an attorney or nonattorney. b. The investigator attempts to obtain the police report. [Generally not released]. c. The investigator attempts to meet with the Complaining Party. i. Law enforcement prefers that the complaining party not meet with the investigator. ii. The complaining party is a current employee and is instructed/ordered to cooperate with the employer. It is not obstruction of justice for the employer to attempt to meet with the complaining party/victim. It is not obstruction of justice for the employer to require or order the victim to meet. iii. However, criminal issues aside, if the issues in the investigation could relate to an unfair labor practice under the National Labor Relations Act, a nonsupervisory employee cannot be required to cooperate in the investigation. See, Johnnie's Poultry Co., 146 NLRB 770, 774-775 (1964). d. May the investigator / employer record the conversation? i. California requires the consent of all parties before the recording of a confidential conversation (CA is an “all party consent state – Penal Code §§ 633 and 633.5). It is a misdemeanor to record without the consent of all parties. ii. Federal law and some other states (e.g. Nevada, Texas) require only one-party consent to record. 5. The investigator meets with the Complaining Party – a. Are records of the interview (notes or recordings) admissible in the criminal proceeding? b. The criminal defense attorney can subpoena information relating to the investigation – including notes and recordings. The attorney might do this to show inconsistencies in the complaining party’s/victim’s story. Page | 3 It’s a Crime (maybe) c. If the investigation was conducted by an attorney (or under the direction of an attorney), the employer can claim attorney-client or work product privilege. In the civil litigation, the employer will be faced with a choice – either to waive the privilege and turn investigation materials over to plaintiff’s counsel or to maintain the privilege and forgo the ability to even mention that an investigation took place. Wellpoint Health Networks, Inc. v. Superior Court, 59 Cal. App. 4th 110, (1997) and Johnson v. Rauland-Borg Corp., 961 F. Supp. 208 (N.D. Ill 1997). d. If the privilege was waived in the civil litigation, the employer will have no recourse if the investigation materials are subpoenaed by defense counsel. e. If the privilege was not waived in the civil litigation, then a conflict would arise between the accused’s 6th Amendment right to confront his/her accuser versus the attorney-client privilege. f. If the report contains only statements of a witness this may not be an attorney client communication. The report may nevertheless still be subject to a work-product privilege. Investigator and Company counsel may wish to include opinions along with raw reporting of statements. Consider stamping document as attorney- client and work-product privileged to indicate intent of company counsel. g. If privilege prevails evidence of innocence – such as inconsistent statement of accuser may be unavailable to criminal defense counsel. 6. The investigator meets with witnesses – a. The police or law enforcement suggest that witnesses not meet with the employer. However, witnesses are current employees and the employer instructs/orders them to meet. This is not obstruction of justice. b. The employer instructs witnesses not to cooperate with the police. This is obstruction of justice. c. Generally, employers cannot tell nonsupervisory employees to maintain confidentiality of the investigation.3 Banner Health System d/b/a Banner Estrella Medical Center and James A. Navarro, 358 NLRB No. 93 (2012); reissued, Banner Health System d/b/a Banner Estrella Medical Center and James A. Navarro, 352 NLRB No. 137 (2015). See also, Los Angeles 3 There are some exceptions. Page | 4 It’s a Crime (maybe) Community College District (2014) PERB Decision No. 2404-E (PERB adopted the Banner Health holding). d. The employer can suggest to witnesses that they may not wish to talk to individuals outside of work relating to the investigation (of course, except for the witnesses’ counsel or union). As long as this is not a requirement or an order, this is not obstruction of justice. e. As above, the criminal defense attorney can subpoena records of these interviews and the same conflict between the 6th amendment and attorney- client privilege will arise. f. As to witnesses, the prosecution also might want records of the interviews. This is discussed in the next section. g. Do not destroy records as this may constitute obstruction of justice. (10- year offense 18 USC §1503) 7. The investigator attempts to meet with the Accused – who is represented by criminal defense counsel – a. What advice does the defense attorney give to the Accused as to whether to meet with the employer’s investigators? i. Practical issues in representing the sophisticated client. ii. The accused individual believing they can persuade. iii. Actors acting / Politicians / Sports Figures / Celebrities b. If the Accused meets with the investigator, with the defense attorney present? i. In a workplace investigation, the accused does not have a right to counsel. TRW, Inc. v. Superior Court, 25 Cal. App. 4th 1834 (1994); rev. den., 1994 Cal. LEXIS 5080 (1994); cert. den. 513 U.S. 1151 (1995). ii. However, an attorney cannot bypass counsel. See, ABA Model Rule 4.2; California Rules of Professional Conduct, Rule 2-100 Communication with a Represented Party (Effective November 1, 2018, Rule 4.2). c. If the accused meets with the investigator, he/she has not waved his/her right to self-incrimination. Page | 5 It’s a Crime (maybe) d. However, the prosecution may wish to obtain records about the accused’s interview. This includes notes and/or recordings. The prosecution can subpoena these records or obtain a warrant for the records. The employer is free to turn over the statements to the prosecution. e. The investigator and employer cannot interfere with or resist the enforcement agency (police, FBI, etc.) from seizing records obtained under warrant. However, the employer can petition the court for a protective order. This presents the same attorney-client and/or work product privileges discussed above. f. In addition, the prosecution may wish to call the investigator as a witness to certain statements made by the accused individual. For example, prior inconsistent statements to those made in court.