For the Defense - Vol. 4, Issue 3 - 17

Prosecutors enjoy flexibility in answering these
questions. Prosecutors may weigh one question
more heavily than the others, creating a unique
evaluation given the relevant circumstances and facts
of each case.5 In other words, the questions serve as
guideposts rather than impose a checklist.
Defense counsel should analyze the three
questions just as a prosecutor would, considering the
specific points summarized below.
According to DOJ's Guide, the critical factor
in evaluating any compliance program is its
comprehensiveness. Thus, in assessing the first
question-whether a corporation's compliance
program is well designed-the Guide suggests
analyzing various factors that focus on the
infrastructure of a corporation's compliance program.
These factors include whether the compliance
program includes a sufficient risk assessment for
the particular company; whether the policies,
procedures, training and communications are welldesigned; whether there is an efficient and thorough
confidential reporting structure and investigation
process; whether the program applies risk-based due
diligence to its third party relationships; and whether

the program includes comprehensive due diligence
of corporate mergers and acquisitions.6 Because
prosecutors will consider these factors in answering
the first question, defense counsel should too.
The purpose of evaluating these factors is
to assess whether the program is designed for
"maximum effectiveness" in preventing and
detecting wrongdoing. And the Guide makes it
clear that in addition to looking for wrongdoing,
prosecutors-and thus defense counsel-must
determine whether there is proper corporate
infrastructure to ensure that there is a system for
detection and discipline if misconduct exists.7
But, because "[e]ven a well-designed compliance
program may be unsuccessful in practice if
implementation is lax or ineffective,"8 prosecutors
are then directed to the second question-whether
the program is applied earnestly and in good
faith. The second question examines whether the
program is properly and effectively implemented.
Prosecutors must review the commitment by senior
and middle management; the program's autonomy
and resources; and the corporation's incentives
and disciplinary measures.9 They must also focus

Vol. 4, Issue 3

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For The Defense

17


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For the Defense - Vol. 4, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 4, Issue 3

Contents
For the Defense - Vol. 4, Issue 3 - 1
For the Defense - Vol. 4, Issue 3 - 2
For the Defense - Vol. 4, Issue 3 - Contents
For the Defense - Vol. 4, Issue 3 - 4
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For the Defense - Vol. 4, Issue 3 - 6
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