Civil or Criminal
If the decision is made to conduct a false claims criminal investigation, then the civil case will be set aside and the Government will eventually make its decision to intervene on the basis of how the criminal case turns out. Even though some qui tam actions are better served by a criminal investigation, not all of them should go that direction. It can be very difficult to prove a specific intent to defraud beyond a reasonable doubt in very complex and difficult government procurement cases. A good example are DoD cost mischarging and defective pricing allegations. Also, because of Fifth Amendment issues that arise in criminal cases, many key defendant personnel are not interviewed or testify in Grand Jury and, thus, crucial information is not obtained.
Unfortunately, most government investigative agencies are geared to criminal investigations, train their investigators as criminal investigators and measure performance primarily by the number of indictments and convictions obtained. Federal investigative agencies also are geared to track primarily criminal statistics. The tendency, therefore, is to conduct a criminal investigation even if a case stands a better chance of success as a civil investigation. Consequently, many qui tam cases have resulted in a government declination because they could not obtain enough evidence to prove a criminal violation even though the case may have been successful in proving a civil violation.
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