James Comey, director of the Federal Bureau of Investigation (FBI) and former United States deputy attorney general, reflected on a question that he frequently hears: ‘How come we haven't seen more high-level financial execs brought to justice?’ Comey used this question to prompt his 2014 keynote address at the New York City Bar White Collar Crime Institute (Comey, 2014). According to Comey, the great challenge in corporate crime cases lies in three sources of complexity: First is the distinction between the corporation, as a legal construct, and individuals inside corporations who engage in criminal activity. Second, prosecutors must not only demonstrate that a criminal act took place (i.e., the actus reus requirement) but also demonstrate that a corporate offender had the mental intent to commit the crime (i.e., the mens rea requirement). Third, and most important, prosecutors must prove criminal mental intent ‘beyond a reasonable doubt’. Comey explains that ‘unlike a drug case – which is about connecting people to a transaction – in nearly every white-collar case, it is clear who was involved in the transactions’. So the real dilemma in corporate crime cases is that the FBI must uncover not only what acts took place, but also what these white-collar professionals were thinking when they enacted them. As Comey puts it, ‘We have to examine the contents of someone's mind.’

Rather than provide the audience with a deeper discussion of and challenges to the mens rea requirement in corporate criminal liability (cf. van der Wilt, this volume; Whyte, this volume; Wells, 2001; Baars, 2012; Almond, 2013), he instead told the audience: