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CHAPTER 5

CHAPTER 5. CRIMES. Crime = Public Wrongs. Felony Serious Offenses (e.g. murder, rape, arson) Generally Punishable by Long Confinement (some offenses, in some jurisdictions, by Execution) May result in Disenfranchisement (Lost of certain rights). U.S. Felony Conviction Rates(2000).

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CHAPTER 5

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  1. CHAPTER 5 CRIMES

  2. Crime = Public Wrongs • Felony • Serious Offenses (e.g. murder, rape, arson) • Generally Punishable by Long Confinement (some offenses, in some jurisdictions, by Execution) • May result in Disenfranchisement (Lost of certain rights)

  3. U.S. Felony Conviction Rates(2000) Source: U.S. Dept. Of Justice, Office Of Justice Programs, Bureau Of Justice Statistics

  4. Crime = Public Wrongs • Misdemeanors • Lesser Offenses (e.g. traffic offenses, disorderly conduct) • Generally Punishable by Fines or Short Confinement

  5. Essentials of a Crime 1) Commission of an Act (actus reus) 2) For which there existed a prior Prohibition (usually Statutory, though in some cases my be Common Law • (i.e. no-Ex post facto)

  6. Essentials of a Crime • 3) Criminal Intent (Mens Rea) • 1. Intentional = either purposeful or knowing: • Purposeful: Conscious object was to engage in the conduct or cause the result. • Knowing: He was aware that his conduct was of a prohibited type or was practically certain to cause a prohibited result. • or 2. Reckless = Conscious disregard of a substantial and unjustifiable risk that was either prohibited or would cause a prohibited result. • or 3. Negligent = Failure to perceive a substantial risk of harm that a reasonable person would have perceived. • Not apply for certain crimes (e.g. statutory rape) • Maybe inferred from actions • First Degree generally requires premeditation

  7. Criminal Intent

  8. Essentials of a Crime • Note: Some Crimes Require Only the Wrongful Act (Proof of intent is not necessary) • For Example: • Corporate air and water pollution • Inaccurate weights and measures • Sale of adulterated food • Sale of narcotics to someone who doesn’t have a prescription • Sale of alcoholic beverages to a minor

  9. Essentials of Crime • 4) Capacity • M’Naghten standard (a person is not responsible if, at the time of the offense, he did not know the nature and quality of his act, or if he did know it, he did not know that his act was wrong) • Voluntary Intoxication • Generally not a complete defense • But may diminish the degree of the defendant’s liability. • Juvenile status • At common law, children younger than 14 years old could not form criminal intent. • Most jurisdictions still have a special status for juvenile defendants • But repeat offenders, and those charged with very serious offenses may be treated as adults.

  10. Essentials of Crime • 4)Capacity (cont.) • Insanity • at time of act = no liability • at time of trial = delay • after trial but before sentencing = delay • The Supreme Court has found that States may establish a presumption that defendant is competent to stand trial and make the defendant prove that he isn’t. (see Medina vCalifornia, 1992). • Juries tend to be hostile to the insanity defense

  11. Essentials of Crime • The idea behind capacity is that we want to punish the willful wrongdoer: an essentially moral idea. • Is it moral to execute children who have murdered others? (see, Stanford v. Kentucky, 109 S. Ct. 2926 (1989)), or the mentally retarded (see, Penry v. Lynaugh, 109 S.Ct. 2934 (1989))? Recently disallowed by U.S. Supreme Court in Roper, Superintendent, Potosi Correctional Center v. Simmons (2005) • (see: http://www.mindfully.org/Reform/2005/Death-Penalty-Juveniles1mar05.htm

  12. Criminal Procedure Criminal cases are brought in the name of the state, by the state’s representative: e.g. the District Attorney in state cases and the United States Attorney in federal cases. The prosecutor’s power to decide who will be prosecuted for crime makes him or her one of the most powerful persons in the criminal justice system.

  13. Criminal Procedure • Arrest • Booking • Initial appearance • Preliminary hearing to determine probable cause • Indictment or information • Arraignment • Trial

  14. Criminal Procedure Initial Appearance & Preliminary Hearing • Presided over by a “magistrate” or “commissioner” • Defendant is usually entitled to be represented by counsel • Preliminary hearing: Is there probable cause to believe the defendant committed the crime?

  15. Criminal Procedure • Indictment or Information • The federal system and about 1/2 of the states require an indictment from a grand jury for all felony prosecutions • All others require an information or formal accusation of a crime from a prosecutor

  16. Criminal Procedure • Arraignment • Occurs in front of the trial court • Defendant may enter various motions • Defendant enters his plea • If he enters a plea of not guilty, he must stand trial • If he enters a plea of guilty, the judge may sentence him or set a later hearing for sentencing

  17. Criminal Procedure Protections • 4th- Protection against unreasonable searches & seizures • Exclusionary Rule: Illegally obtained evidence inadmissible (Recent Local Example) • Porn, theft charges likely to be dropped: Judge says search by police illegalLast year, Carrboro police arrested Andrew Douglas Dalzell on theft and pornography charges but doctored another arrest warrant to make it look like they were picking him up for the 1997 murder of Deborah Leigh Key.Dalzell, now 28, confessed, but a judge ruled Dalzell's admission was coerced, and the district attorney dismissed the murder charges. Still, the charges that Dalzell stole a credit card number, took paint and figurines from an employer and downloaded child pornography remained. Until Thursday, when a judge ruled that Carrboro police also illegally collected evidence for the theft and pornography charges. As a result, Orange-Chatham District Attorney Jim Woodall said he will likely drop those remaining charges today. "The Carrboro Police Department ... took some chances and came up with a plan to try to make a break in the [murder] case," Woodall said. The plan would have worked, because Dalzell did confess to killing Key, he added. "It's just along the way many mistakes have been made preventing us from pursuing the case," he said. Carrboro police went on an illegal "fishing expedition" when they searched the murder suspect's apartment with a search warrant looking for stolen hobby goods last year, Superior Court Judge Howard Manning wrote in his decision, filed Thursday. For example, police seized a leather jacket because they thought it might be evidence in the murder investigation, even though the jacket wasn't listed on the search warrant. North Carolina law requires a search warrant to specify what items police are looking for, where they expect to find them and their relevance to a crime. But Carrboro Police lacked probable cause for the first warrant taken out Sept. 1, 2004, Manning wrote. Because every other search was based on things recovered during the first search, it's all tainted by the fact that the first was illegal. "The search warrant was no more and no less than an open invitation for [Investigator Anthony Westbrook] and [Lt. John Lau] to engage in a general, exploratory rummage through [Dalzell's] remaining belongings in the apartment," Manning wrote. Dalzell was long considered the prime suspect in Key's 1997 disappearance, but the case quickly went cold. So when Carrboro police arrested Dalzell and said he had confessed, they received both kudos and questions from family, friends, lawyers and other law enforcement officers. Then, after details emerged about how the department got Dalzell to say he killed Key after they left a Carrboro bar eight years ago, Superior Court Judge Wade Barber ruled the confession couldn't be used as evidence. Along with the fake arrest warrant, officers also faked a letter saying prosecutors would seek the death penalty unless Dalzell confessed and led police to Key's body. Carrboro Police Chief Carolyn Hutchison said that officers followed proper procedure in getting the search warrant and that everyone acted in good faith. “ This case presented complex legal issues all along the way," she said. Hutchison said the department has conducted internal reviews and officers have talked with the Carrboro town attorney, the District Attorney's Office and others to learn from the case. (Jessica Rocha, Raleigh News & Observer, 10/14/05.

  18. Criminal Procedure Protections • 4th- Protection against unreasonable searches & seizures • Kyllo v. United States, p.105 • The Supreme Court finds that police scanning of a home with a thermal imager without a warrant is an impermissible search because it violates the right to be left alone from governmental monitoring of our actions in our homes. • “In the sanctity of the home all details are intimate details” • Note: This was a 5-4 decision.

  19. Criminal Procedure Protections • 4th- Protection against unreasonable searches & seizures • Searches of Business: generally business inspectors must have a warrant. (Marshall v. Barlow, 1978)

  20. Criminal Procedure Protections • 4th- Protection against unreasonable searches & seizures • The Constitution protects against unreasonable search and seizure. A seizure occurs when a vehicle is stopped at a checkpoint. The magnitude of the drunken driving problem is beyond dispute, and the state has an interest in eradicating it. The measure of the intrusion on the motorist stopped briefly at sobriety checkpoints is slight. Additionally, the degree of “subjective intrusion,” the fear and surprise engendered in law-abiding motorists by the nature of the stop, is minimal. They can see that other vehicles are stopped, as well as visible signs of the officers’ authority. Finally, the checkpoints are sufficiently effective to be sustainable. Approximately 1 percent of all motorists stopped are arrested. In striking the balance between the state’s need and the individual’s rights, the checkpoints are constitutional. Michigan Department of State Police v. Sits, 496 U.S. 444 (1990).

  21. Criminal Procedure Protections • 4th- Protection against unreasonable searches & seizures • Question 7 at end of chapter • No. People have a reasonable and legitimate expectation of privacy in their homes as well as in the curtilage area immediately surrounding their homes. The Fourth Amendment is intended to protect this area from governmental interference or surveillance. The businessperson, like the occupant of a residence, has a constitutional right to be free from unreasonable governmental entry on his or her private commercial property. The government, however, has greater latitude to conduct warrantless inspections of commercial property because the expectation of privacy there differs significantly from that in one’s dwelling. Dow could expect its privacy to be protected within its covered buildings. The open areas of the 2,000-acre plant complex, however, are not analogous to a home’s curtilage. Thus, taking aerial photographs of an industrial plant complex from navigable airspace with a conventional commercial camera is not a search prohibited by the Fourth Amendment. Dow Chemical Co. v. United States, 476 U.S. 227 (1986).

  22. Criminal Procedure Protections • 4th- Protection against unreasonable searches & seizures • Question 8 at end of chapter • No. Where, as here, police officers have probable cause to search a car, the officers may inspect passenger’s belongings that are inside the car if those belongings are capable of concealing the object of the search. Passengers possess a reduced expectation of privacy with regard to property they transport in cars. The degree of intrusiveness upon personal dignity is minimal when a package is being examined. Moreover, the government’s interest in effective law enforcement would be appreciably impaired if officers did not have the ability to search a passenger’s belongings because the ready mobility of a car creates the risk that evidence or contraband would be permanently lost while a warrant was being sought. Wyoming v. Houghton, 526 U.S 295 (U.S. Sup. Ct. 199).

  23. Criminal Procedure Protections • 4th- Requirement of Probable Cause to search or arrest • 5th- Privilege against self-incrimination • 5th- Miranda • Right to remain silent • Anything said can/will be used against you • Right to consult with a lawyer, to have lawyer present during interrogation • Cannot afford lawyer, a lawyer will be appointed (free of charge)

  24. 5th Amendment • Double Jeopardy Double jeopardy (also called “autrefois acquit” is a procedural defense that forbids a defendant from being tried a second time for the same crime.

  25. 5th Amendment - Grand Jury • 23 Citizens Of Jurisdiction • Determine Probable Cause • Presumption Of Innocence • No Defense Counsel • Subpoena Power • Secret Proceedings

  26. 5th Amendment • Self-Incrimination • Protects Accused From Testifying Against Self • Does Not Protect Against Being Required To Produce Evidence • Business Records Can Be Obtained • Only Protects Sole Proprietorship Entity • Double Jeopardy

  27. 5th Amendment – Double Jeopardy HUDSON v. UNITED STATES 118 S.Ct. 488 (1997) FACTS: Petitioners were assessed civil penalties and were later indicted on charges arising out of the same transaction. Petitioners moved to dismiss the indictment on Double Jeopardy grounds. ISSUE: Is the Double Jeopardy Clause of the Fifth Amendment a bar to criminal prosecution? DECISION: No. REASONS: 1. The Double Jeopardy Clause protects only against the imposition of multiple criminal punishments. 2. Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. If the statutory scheme is so punitive to transform the civil remedy into a criminal penalty, the Double Jeopardy Clause may be violated. 3. Neither the monetary penalties nor the debarment sanctions are so punitive in form and effect to render them criminal.

  28. Criminal Procedure Protections • 5th- Miranda • Right to remain silent • Anything said can/will be used against you • Right to consult with a lawyer, to have lawyer present during interrogation • Cannot afford lawyer, a lawyer will be appointed (free of charge)

  29. 6th Amendment Provides Protections To: • Speedy/Public Trial • Trial By Jury • Be Informed Of Charge • Confront Accuser • Subpoena Witnesses • Assistance Of Attorney

  30. Criminal Procedure Protections • 8th- Protection against cruel and unusual punishment • Is capital punishment, or any particular method of capital punishment, cruel & unusual?

  31. Criminal Procedure Protections • Equal Protection Clause prohibits arbitrary discrimination • Legislatures can’t outlaw constitutionally protected behavior • e.g. Free Speech, though some types of speech can be considered criminal, e.g. the communication of a threat.

  32. Criminal Procedure Protections • Equal Protection • “Strict Scrutiny” Test. • Laws that affect the “fundamental rights” of similarly situated individuals in a different manner are subject to the “strict scrutiny” test. • Any “suspect class” (race, national origin) must serve a “compelling state interest” which includes remedying past discrimination.

  33. Criminal Procedure Protections • Equal Protection • Intermediate Scrutiny. • Applied to laws involving gender or legitimacy. • To be constitutional laws must be substantially related to important government objectives.

  34. Criminal Procedure Protections Equal Protection “Rational Basis” Test. • Applied to matters of economic or social welfare. • Laws will be constitutional if there is a rational basis relating to legitimate government interest. (WHS Realty v. Morristown, 1999)

  35. Criminal Procedure Protections • Due Process • 5th and 14th amendments provide “no person shall be deprived of life, liberty or property without due process of law.” • Due Process includes both Procedural and Substantive issues.

  36. Criminal Procedure Protections • Procedural Due Process • Procedures depriving an individual of her rights must be fair and equitable. • Constitution requires adequate notice and a fair and impartial hearing before a disinterested magistrate.

  37. Criminal Procedure Protections • Substantive Due Process • Focuses on the content or substance of legislation. • e.g. Laws limiting fundamental rights (speech, privacy, religion) must have a “compelling state interest.” • e.g. Laws limiting non-fundamental rights require only a “rational basis”.

  38. Criminal Procedure Protections • Due Process requires that criminal statutes be clearly worded (so that they put an ordinary person on notice). • Question 4. Chicago v. Morales, • The Court finds that an anti-loitering statute passed by Chicago to help control street-gang activity and thereby decrease the murder rate, is unconstitutionally vague and gives the police officer too much discretion. The Court suggests how it might be made constitutional with some changes. • Note: In Chicago v. Youkhana The Court found that the freedom to loiter for innocent purposes is part of the constitutionally protected liberty interest.

  39. Criminal Procedure Protections • Due Process requires that criminal statutes be clearly worded (so that they put an ordinary person on notice). • Chaffee v. Roger, p.102 • Like the U.S. Supreme Court’s decision in Chicago v. Morales , the U.S. District Court in Chaffe finds the Nevada intimidation statute unconstitutionally vague and gives police officers too much discretion. Additionally, the court finds the Nevada statute to be overbroad. The Court remanded the issue to the Nevada Supreme Court so that the court could narrow the meaning of “threat” and “intimidation.” In the overbreadth analysis of the law, the court finds that the statute stands to chill legitimate first amendment activities.

  40. Criminal Procedure Protections • Due Process requires that criminal statutes be clearly worded (so that they put an ordinary person on notice). • Houston v. Hill • The appellee, Hill, was arrested for shouting at officers who were talking with another individual. Hill’s admitted intent was to divert the officers’ attention from their duties. The statute under which Hill was arrested made it unlawful to “in any manner… interrupt any policeman in the execution of his duty.” In holding the statute to be unconstitutionally overbroad, the Court explained that, “the freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” 482 U.S. 451, 462-463 (1987).

  41. Criminal Procedure Protections • Another loitering statute, overly broad? • Some loitering statutes have been upheld, but Alexandria’s statute cannot be because it is overbroad. It criminalizes a substantial amount of constitutionally protected activities by equating unlawful purpose with innocent activities that may be done by a person lacking unlawful intent. A person could be prosecuted for speaking in public for 15 minutes, shaking hands, and exchanging business cards. Individuals could be convicted for distributing campaign literature, asking persons to sign petitions, and soliciting community support. The inherent danger of the statute is that people may abstain from socializing, counseling, organizing community events, or registering to vote out of fear of prosecution NorthernVirginia Chapter, American Civil Liberties Union v. Alexandria Va., 747 F. Supp. 324 (D. E. Va. 1990).

  42. Business Crimes • White-collar = non-violent, often business/financial (e.g. embezzlement, fraud, etc.) • Sabine v. Texas, p.52 • The court finds that OSHA does not preempt the state’s use of criminal law to prosecute Sabine and its president for criminally negligent homicide. • United States v. Dean, p.52-53 • The court found that the state did not need to prove the company manager knew about the statutory permit requirement in order to convict him of ordering employees to dispose of hazardous chemicals without the permit. He just had to know he was “treating” hazardous waste. • Is it fair to infer knowledge of regulations to business people in the business that is being regulated? Should it depend on an individual’s position in the company?

  43. Business Crimes • White-collar Crime • United States v. Hong, p. 107 • Hong is found liable under the “responsible corporate officer” doctrine even though he is not a corporate officer. Hong stands for the idea that personal liability promotes responsible conduct. It sets a precedent for charging criminal negligence when a company official or shareholder had no actual knowledge of, or control over, the activities in question. The decision also demonstrates the government’s ability to successfully prosecute a corporate defendant or responsible official for criminal negligence arising out of fiscal decisions that may not have appeared significant or controversial at the time they were made. While Hong is arguably an unsympathetic defendant, it is not difficult to imagine a corporation or a corporate official facing charges under the Clean Water Act for an innocent, yet mistaken, decision involving the purchase, repair, or replacement of pollution control equipment. Hong, like Nanowski, which appears later in the chapter, is steeped in the idea of “public welfare.” In “public welfare” cases, society is willing to tolerate individual unfairness in order to deter socially dangerous conduct.

  44. Business Crimes • White-collar Crime • Public policy justifies the imposition of liability on otherwise innocent persons who stand “in responsible relation to a public danger” when an act does not require intent. A failure to act is sufficient to impose liability if the defendant had the power to prevent the violation. United States v. Park, 421 U.S. 659 (1975).

  45. Business Crimes • White-collar Crime • State of Connecticut v. Nanowski, p. 108 • The state does not have to prove Nanowski intended not to pay his employees in order to successfully prosecute him. Many regulatory offenses dispense with the requirement of proof of criminal intent. Such regulations usually impose strict liability on corporate officers. Strict liability does not require proof that the defendant intended to exact harm, but simply that s/he committed some wrong. Critics of strict liability crimes argue that the mens rea requirement is fundamental to criminal law and is consistent with the retributive principle that one who does not choose to cause social harm, and who is not otherwise morally to blame for its commission, ought not to be punished. Nanowski illustrates the diminished, or non-existent, role of the mens rea requirement in public welfare offenses. It grows out of the U.S. Supreme Court decision in United States v. Park. 421 U.S. 658 (1975).

  46. Business Crimes • White-collar Crime • The RCRA criminal provision states in part, “any person who knowingly ... disposes of any hazardous waste ... without first having obtained a permit” is subject to prosecution. At a minimum, the word knowingly means a person knew the waste was hazardous. Disposal without a permit must also be knowing. Under certain regulatory statutes requiring knowing conduct, however, the government need only prove knowledge of the actions taken and not that defendants knew they were violating a statute. The principle that ignorance of the law is no defense applies. Where dangerous or deleterious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation. Knowledge can be inferred on the part of those whose business it is to know; it may be inferred as to those who hold the requisite responsible positions with the corporation. U. S. it Johnson & Towers, Inc., 741 F.2d 662 (3 Cir. 1984).

  47. Business Crimes • White Collar Crime • Recent trend to get tough (e.g. Sarbanes-Oxley) • Often difficult to prove individual liability for corporate crimes • State/Federal Sentencing Guidelines - primary objective: consistency

  48. OSHA Some Specific Business Crimes • Worker Endangerment- Occupational Safety & Health Act • Obstruction Of Justice • False Statement • Bank • Federal Agency (This is what got Martha Stewart!)

  49. Some Crimes Affecting Business • Robbery- aggravated • Burglary- aggravated • Larceny • Grand • Petit/Petty • False Pretenses • Receiving Stolen Goods • Arson • Forgery

  50. Some Crimes Affecting Business • Theft (also known as stealing) is in general, the wrongful taking of someone else's property without that person's willful consent, with the intent to permanently deprive them of its possession or use. In law, “theft” is usually the broadest term for a crime involving the taking of property. Legally, in most jurisdictions, theft is generally considered to be synonymous with larceny.

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