Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport

1. Basic Criminal Law: The United States Constitution, Procedure and CrimesAnniken U. Davenport

2. UNIT THREE: CRIMINAL LAW Chapter 10 Crimes Against Property

3. Introduction • In England and the United States, one of the most important rights accorded citizens is the protection of his or her right to property, both real and personal • Real property is land and everything permanently attached to it. • Personal property is everything else the law grants ownership rights to. It is also known as chattel. • Property can be owned outright, If is is, the owner is said to hold the property in fee simple. • Many persons can own the same property together. Husbands and wives often own property as tenants by the entireties. • Other forms of joint ownership are tenancy in common and joint tenancy with right of survivorship.

4. Tenants in common each own an undivided interest in the whole property. • Title to property can be acquired in several ways. • Property rights can be bought for a price, inherited, acquired as a gift, or acquired by mere possession. • The most common methods of transfer of property rights is through purchase or inheritance. • In criminal law, ownership is important. A thief cannot steal his own property. • Theft also requires that the prosecution prove beyond a reasonable doubt that the defendant intended to permanently deprive the owner of the property taken.

5. Theft or Larceny • The terms theft and larceny are interchangeable. • At Common Law, theft was defined as the taking and carrying away of another’s personal property with the intent to deprive him or her of it permanently. These are some common theft classifications: • Shoplifting or retail theft • Purse snatching • Pickpocketing • Looting • Library Theft • Theft by deception • Theft of services • Theft by bailee or trustee • Auto theft • Many jurisdictions have created other crimes of theft.

6. The Basic Elements of Theft • Taking and Carrying Away • The first element of the crime of theft is “taking and carrying away”. • Personal Property • Under the Common Law, the only type of property that could be stolen was tangible personal property. • Now all jurisdictions have revised their theft statutes to include intangible personal property under definitions of theft. • Of Another • The property stolen must belong to someone other than the defendant.

7. With the Intent to Permanently Deprive the Owner of the Property • The final element of the crime of theft involves intent. • The defendant must intend to permanently deprive the owner of the property. • Embezzlement occurs when someone who has legal possession of property of another uses, converts, or retains that property for his own use or the use of someone other than the owner. • Avoiding embezzlement requires putting in place an appropriate check to assure that no one can divert funds without notice.

8. Robbery • Robbery is the taking of personal property from the person of another against his will, by either force or threat of force. It is forcible stealing. • To convict a defendant of robbery, the prosecution must prove that there was: • A taking and carrying away of the property of another; • The intent to steal that property; • Property taken from the person or in the presence of the person; and • The use of force or threat of the use of imminent force. • Generally, states have two categories of robbery-simple robbery and armed robbery.

9. Caution: Federal Law Differs From Common Law • There are also federal criminal laws prohibiting robbery. • Federal law defines a bank robber as: • Whoever attempts to take anything of value belonging to, or in the care, custody, control, management or possession of, any bank , credit union, or any savings and loan association. • The Supreme Court has ruled that prosecutors seeking bank robbery convictions under this statute do not have to prove that the robber took or carried away the valuables he attempted to take. • The Elements of the Crime of Robbery • From the Person or in the Presence of the Person • Robbery does not occur if force is neither threatened or used.

10. By the Use of Force of Threat of the Use of Imminent Force • Robbery must be committed with the aid of the use of force or the threat of the imminent use of force. • Generally, if a weapon is displayed in the presence of a victim when a theft is attempted or takes place, the crime committed is armed robbery. • In most cases, the fact that a toy gun appears real is enough to sustain a charge of armed robbery. • Burglary • At Common Law, burglary was the breaking and entering of the dwelling house of another at night with the intent to commit a felony inside. • Force must have been used. • In addition, the entry had to be to a dwelling house. • Burglary is complete when the entry with intent to commit a felony has taken place.

11. Today, states have expanded the definition of burglary to cover just about any unauthorized entry into a structure, at any time of day or night. • Unlawful Entry Into Premises • Most states hold that reaching in is enough to constitute burglary. • Most states still require that there must be at least some form of unauthorized entry into the premises. • Dwelling House of Another • At Common Law, a dwelling house was a structure in which people lived and slept. • States no longer limit burglary to dwelling house, and include just about any structure, occupied or unoccupied, in their definitions. • The prosecution must show that the defendant did not have permission to be present in the structure.

12. With Intent to Commit a Felony • Proving intent is generally not difficult in burglary cases even if the defendant isn’t “caught in the act”. Circumstantial evidence is often relied on by juries and judges. • Arson • At Common Law, arson was the malicious burning of the dwelling house of another. • Today, most states have changed their laws to define arson as the willful and malicious burning of a structure or building. • The standard of intent is willful and malicious burning. • The FBI reports that in 2000 there were over 78,000 cases of arson reported to police. • Unfortunately, the clearance rate for arson was only 16 percent.

13. Essential Elements of Arson • The essential elements that the government must prove beyond a reasonable doubt in an arson case are: • The fire was willfully and maliciously set; and • The fire set by the defendant caused damage. • Arson cases are not easy to prove. • The Supreme Court has ruled that once a blaze has been extinguished and the fire-fighters have left the premises, a warrant is required to reenter the premises. • Forgery and Check Fraud • Forgery is the fraudulent making or altering of any writing in a way that alters the legal rights and liabilities of another. • Check fraud includes forgery and other forms of theft accomplished through the misuse of checks or the check processing system.

14. The most common forms of check fraud are: • Forged signatures • Forged endorsements • Altered checks • Check kiting • Counterfeit checks • All states have criminal laws punishing check fraud and forgery. • In addition, the United States Code has many provisions dealing with forged and counterfeited securities and other commercial documents. • Practice Pointers • Always check the exact wording of the criminal code of your state or the U.S. Code if the case you are working on comes under federal jurisdiction.

15. If a client faces arson charges, be sure to examine the allegations and the evidence carefully. • If you work for the defense, you may want to consider bringing in your own expert to determine if the evidence really indicates that the fire was deliberately set. • Forgery and check fraud cases often depend heavily on expert testimony about the authenticity of a signature. • When identifying an expert, keep these guidelines in place: • Examine each potential expert’s resume and experience carefully; • Experts who only testify for the prosecution or only testify for the defense are suspect; • Check credentials carefully; and • When preparing the case, note any special rules in your jurisdiction about the exchange of expert testimony or notice of the intended use of an expert’s opinion at trial.