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Which are the means of evidence in the insider trading crime in United States of America? the decision analysis methodology applied to search of answers

Abstract

This study aims to answer: what are the means of proof used in criminal cases of insider trading in the United States of America (USA)?; Is it possible for these means of proof to be applied in Brazilian criminal actions on the subject?. The concept of the use of privileged information in its criminal facet is established by exposing the controversies on the subject and how it is treated in the national and international literature, as it constitutes a comparative study. Afterwards, the Decision Analysis Methodology is approached as a form of empirical investigation, in order to discuss the probative activity in insider trading crimes. It discusses how the US faces the issue, especially regarding the role of evidence, to bring elements to the Brazilian law enforcer. The approach is qualitative and quantitative, with a literature review and Content Analysis and Decision Analysis Methodologies. The unit of analysis is US criminal cases, in 2019. The following are the means of proof used in these cases: breach of telephone secrecy; confession; testimonies; borrowed evidence; communication with unions; statistical analysis; newspaper articles and conclusions of the company’s own Audit Committee. They are evidence, fully, possible of survey and construction by the Brazilian criminal judiciary, so, proposals for improvement are presented.

Keywords
Insider trading; Means of evidence; Criminal evidence; Decision analysis methodology

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