Corporate Criminal Responsibility

Corporate defendants in the United States, like individual defendants, enjoy certain protections available only in the criminal context: the right to have all elements of the offense proven beyond a reasonable doubt instead of by a preponderance of the evidence; the right to indictment by a grand jury; the right to trial by jury; the right to confront adverse witnesses; freedom from double jeopardy; and the right to effective counsel. Of these, the burden of proof and the right to jury trial may be the most significant. Proof of most complex crimes, which will be the bulk of crimes charged against a corporation, are difficult to prove. Requiring proof beyond a reasonable doubt will be difficult and likely will dissuade prosecutors from proceeding in many cases. Trial by jury presumably means that a jury must understand the charges before they convict. Clarifying a corporation's role in a complex crime may not be feasible and should lead to acquittal. In addition, juries may not approve of the broad standards of corporate criminal liability; jury nullification is a possibility.

Corporations do not enjoy what is perhaps the most significant right belonging to defendants in the American criminal justice system. They do not have the right not to incriminate themselves. Considering that most statements against corporate interest will be made by corporate agents over whom a corporation may have little control, the inability to assert this right is a serious disability for the corporate defendant.