CHAPTER 5 CRIMES. Crime = Public Wrongs FelonyFelony –Serious Offenses (e.g. murder, rape, arson)...

CHAPTER 5CHAPTER 5

CRIMESCRIMES

Crime = Public WrongsCrime = Public Wrongs

• FelonyFelony– Serious Offenses (e.g. murder, rape, arson)Serious Offenses (e.g. murder, rape, arson)– Generally Punishable by Long Confinement Generally Punishable by Long Confinement

(some offenses, in some jurisdictions, by (some offenses, in some jurisdictions, by Execution)Execution)

– May result in Disenfranchisement (Lost of certain May result in Disenfranchisement (Lost of certain rights)rights)

U.S. Felony Conviction Rates(2000)

0% 10% 20% 30% 40% 50% 60% 70%

Driving Offense

Drug Trafficking

Murder

Burglary

Weapons Offense

Motor Vehicle Theft

Assault

Fraud

Source: U.S. Dept. Of Justice, Office Of Justice Programs, Bureau Of Justice Statistics

Crime = Public WrongsCrime = Public Wrongs

• MisdemeanorsMisdemeanors– Lesser Offenses (e.g. traffic Lesser Offenses (e.g. traffic

offenses, disorderly conduct)offenses, disorderly conduct)

– Generally Punishable by Fines or Generally Punishable by Fines or Short ConfinementShort Confinement

Essentials of a CrimeEssentials of a Crime

1) Commission of an Act (1) Commission of an Act (actus reusactus reus))

2) For which there existed a prior Prohibition 2) For which there existed a prior Prohibition (usually Statutory, though in some cases my be (usually Statutory, though in some cases my be Common LawCommon Law– (i.e. no-(i.e. no-Ex post factoEx post facto))


• 3) Criminal Intent (Mens Rea)3) Criminal Intent (Mens Rea)– 1. Intentional = either purposeful or knowing:1. Intentional = either purposeful or knowing:

• Purposeful:Purposeful: Conscious object was to engage in the conduct or Conscious object was to engage in the conduct or cause the result.cause the result.

• Knowing:Knowing: He was aware that his conduct was of a prohibited type or He was aware that his conduct was of a prohibited type or was practically certain to cause a prohibited result.was practically certain to cause a prohibited result.

– or 2.or 2. Reckless Reckless = Conscious disregard of a substantial and = Conscious disregard of a substantial and unjustifiable risk that was either prohibited or would cause unjustifiable risk that was either prohibited or would cause a prohibited result.a prohibited result.

– or 3.or 3. Negligent Negligent = Failure to perceive a substantial risk of = Failure to perceive a substantial risk of harm that a reasonable person would have perceived.harm that a reasonable person would have perceived.

– Not apply for certain crimes (e.g. statutory rape)Not apply for certain crimes (e.g. statutory rape)– Maybe inferred from actionsMaybe inferred from actions– First Degree generally requires premeditationFirst Degree generally requires premeditation

Criminal IntentCriminal Intent

• Note: Some Crimes Require Only the Note: Some Crimes Require Only the Wrongful Act (Proof of intent is not Wrongful Act (Proof of intent is not necessary)necessary)

• For Example:For Example:– Corporate air and water pollutionCorporate air and water pollution– Inaccurate weights and measuresInaccurate weights and measures– Sale of adulterated foodSale of adulterated food– Sale of narcotics to someone who Sale of narcotics to someone who

doesn’t have a prescriptiondoesn’t have a prescription– Sale of alcoholic beverages to a minorSale of alcoholic beverages to a minor


Essentials of CrimeEssentials of Crime

• 4) Capacity4) Capacity– M’Naghten standard (a person is not responsible if, at the M’Naghten standard (a person is not responsible if, at the

time of the offense, he did not know the nature and quality 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 of his act, or if he did know it, he did not know that his act was wrong)was wrong)

– Voluntary IntoxicationVoluntary Intoxication• Generally not a complete defenseGenerally not a complete defense• But may diminish the degree of the defendant’s liability.But may diminish the degree of the defendant’s liability.

– Juvenile statusJuvenile status• At common law, children younger than 14 years old could not At common law, children younger than 14 years old could not

form criminal intent.form criminal intent.• Most jurisdictions still have a special status for juvenile Most jurisdictions still have a special status for juvenile

defendantsdefendants• But repeat offenders, and those charged with very serious But repeat offenders, and those charged with very serious

offenses may be treated as adults.offenses may be treated as adults.


• 4)Capacity (cont.)4)Capacity (cont.)– InsanityInsanity

• at time of act = no liabilityat time of act = no liability• at time of trial = delayat time of trial = delay• after trial but before sentencing = delayafter trial but before sentencing = delay• The Supreme Court has found that States may The Supreme Court has found that States may

establish a presumption that defendant is competent establish a presumption that defendant is competent to stand trial and make the defendant prove that he to stand trial and make the defendant prove that he isn’t. (see isn’t. (see Medina vMedina v CaliforniaCalifornia, 1992)., 1992).

• Juries tend to be hostile to the insanity defenseJuries tend to be hostile to the insanity defense


• The idea behind capacity is that we want The idea behind capacity is that we want to punish the willful wrongdoer: an to punish the willful wrongdoer: an essentially moral idea. essentially moral idea. – Is it moral to execute children who have murdered Is it moral to execute children who have murdered

others?others? (see, (see, Stanford v. KentuckyStanford v. Kentucky, 109 S. Ct. 2926 , 109 S. Ct. 2926 (1989)), or the mentally retarded (see, (1989)), or the mentally retarded (see, Penry v. Penry v. LynaughLynaugh, 109 S.Ct. 2934 (1989))? Recently , 109 S.Ct. 2934 (1989))? Recently disallowed by U.S. Supreme Court in Roper, disallowed by U.S. Supreme Court in Roper, Superintendent, Potosi Correctional Center v. Superintendent, Potosi Correctional Center v. Simmons (2005) Simmons (2005)

– (see: http://www.mindfully.org/Reform/2005/Death-(see: http://www.mindfully.org/Reform/2005/Death-Penalty-Juveniles1mar05.htmPenalty-Juveniles1mar05.htm

Criminal ProcedureCriminal Procedure

Criminal cases are brought in the Criminal cases are brought in the name of the state, by the state’s name of the state, by the state’s representative: e.g. the District representative: e.g. the District Attorney in state cases and the United Attorney in state cases and the United States Attorney in federal cases.States Attorney in federal cases.

The prosecutor’s power to decide who The prosecutor’s power to decide who will be prosecuted for crime makes will be prosecuted for crime makes him or her one of the most powerful him or her one of the most powerful persons in the criminal justice system.persons in the criminal justice system.

• ArrestArrest• BookingBooking• Initial appearanceInitial appearance• Preliminary hearing to Preliminary hearing to

determine probable determine probable causecause

• Indictment or Indictment or informationinformation

• ArraignmentArraignment• TrialTrial


Initial Appearance & Preliminary HearingInitial Appearance & Preliminary Hearing– Presided over by a “magistrate” or Presided over by a “magistrate” or

“commissioner”“commissioner”– Defendant is usually entitled to be represented Defendant is usually entitled to be represented

by counselby counsel– Preliminary hearing: Is there probable cause to Preliminary hearing: Is there probable cause to

believe the defendant committed the crime?believe the defendant committed the crime?


• Indictment or InformationIndictment or Information– The federal system and about 1/2 of The federal system and about 1/2 of

the states require an indictment from the states require an indictment from a grand jury for all felony a grand jury for all felony prosecutionsprosecutions

– All others require an information or All others require an information or formal accusation of a crime from a formal accusation of a crime from a prosecutorprosecutor


• ArraignmentArraignment– Occurs in front of the trial courtOccurs in front of the trial court– Defendant may enter various motionsDefendant may enter various motions– Defendant enters his Defendant enters his pleaplea

• If he enters a plea of not guilty, he must If he enters a plea of not guilty, he must stand trialstand trial

• If he enters a plea of guilty, the judge may If he enters a plea of guilty, the judge may sentence him or set a later hearing for sentence him or set a later hearing for sentencingsentencing


Criminal Procedure ProtectionsCriminal Procedure Protections• 44thth- Protection against unreasonable searches & seizures- Protection against unreasonable searches & seizures

– Exclusionary Rule: Illegally obtained evidence inadmissible (Recent Local Example)Exclusionary Rule: Illegally obtained evidence inadmissible (Recent Local Example)– Porn, theft charges likely to be dropped: Judge says search by police illegalPorn, theft charges likely to be dropped: Judge says search by police illegal

Last year, Carrboro police arrested Andrew Douglas Dalzell on theft and pornography charges but doctored another Last 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, 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. 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 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 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 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 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 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. 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 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 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 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 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 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 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 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 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. 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 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, 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 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 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 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 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 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 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 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.the case. (Jessica Rocha, Raleigh News & Observer, 10/14/05.

Criminal Procedure ProtectionsCriminal Procedure Protections

• 44thth- Protection against unreasonable - Protection against unreasonable searches & seizuressearches & seizures– Kyllo v. United States, p.105Kyllo v. United States, p.105– The Supreme Court finds that police scanning of a home The Supreme Court finds that police scanning of a home

with a thermal imager without a warrant is an with a thermal imager without a warrant is an impermissible search because it violates the right to be impermissible search because it violates the right to be left alone from governmental monitoring of our actions in left alone from governmental monitoring of our actions in our homes.our homes.

– ““In the sanctity of the home all details are intimate details” In the sanctity of the home all details are intimate details” – Note: This was a 5-4 decision.Note: This was a 5-4 decision.


• 44thth- Protection against unreasonable searches & - Protection against unreasonable searches & seizuresseizures– Searches of Business: generally business inspectors Searches of Business: generally business inspectors

must have a warrant. (Marshall v. Barlow, 1978)must have a warrant. (Marshall v. Barlow, 1978)


• 44thth- Protection against unreasonable searches & - Protection against unreasonable searches & seizuresseizures– The Constitution protects against unreasonable search and seizure. A The Constitution protects against unreasonable search and seizure. A

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


• 44thth- Protection against unreasonable searches & seizures- Protection against unreasonable searches & seizures– Question 7 at end of chapterQuestion 7 at end of chapter

• No. People have a reasonable and legitimate expectation of privacy in No. People have a reasonable and legitimate expectation of privacy in their homes as well as in the curtilage area immediately surrounding their their homes as well as in the curtilage area immediately surrounding their homes. The Fourth Amendment is intended to protect this area from homes. The Fourth Amendment is intended to protect this area from governmental interference or surveillance. The businessperson, like the governmental interference or surveillance. The businessperson, like the occupant of a residence, has a constitutional right to be free from occupant of a residence, has a constitutional right to be free from unreasonable governmental entry on his or her private commercial unreasonable governmental entry on his or her private commercial property. The government, however, has greater latitude to conduct property. The government, however, has greater latitude to conduct warrantless inspections of commercial property because the expectation warrantless inspections of commercial property because the expectation of privacy there differs significantly from that in one’s dwelling. Dow could 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 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 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 home’s curtilage. Thus, taking aerial photographs of an industrial plant complex from navigable airspace with a conventional commercial camera complex from navigable airspace with a conventional commercial camera is not a search prohibited by the Fourth Amendment. is not a search prohibited by the Fourth Amendment. Dow Chemical Co. Dow Chemical Co. v. United Statesv. United States, 476 U.S. 227 (1986)., 476 U.S. 227 (1986).


• 44thth- Protection against unreasonable searches & seizures- Protection against unreasonable searches & seizures– Question 8 at end of chapterQuestion 8 at end of chapter

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


• 44thth- Requirement of Probable - Requirement of Probable Cause to search or arrestCause to search or arrest

• 55thth- Privilege against self-- Privilege against self-incriminationincrimination

• 55thth- Miranda- Miranda– Right to remain silentRight to remain silent– Anything said can/will be used Anything said can/will be used

against youagainst you– Right to consult with a lawyer, Right to consult with a lawyer,

to have lawyer present during to have lawyer present during interrogationinterrogation

– Cannot afford lawyer, a lawyer Cannot afford lawyer, a lawyer will be appointed (free of will be appointed (free of charge)charge)

5th Amendment5th Amendment5th Amendment5th Amendment

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

55thth Amendment - Grand Jury Amendment - Grand Jury• 23 Citizens Of Jurisdiction23 Citizens Of Jurisdiction

• Determine Probable CauseDetermine Probable Cause

• Presumption Of InnocencePresumption Of Innocence

• No Defense CounselNo Defense Counsel

• Subpoena PowerSubpoena Power

• Secret ProceedingsSecret Proceedings


• Self-IncriminationSelf-Incrimination– Protects Accused From Testifying Against Protects Accused From Testifying Against

SelfSelf– Does Not Protect Against Being Required Does Not Protect Against Being Required

To Produce EvidenceTo Produce Evidence– Business Records Can Be ObtainedBusiness Records Can Be Obtained– Only Protects Sole Proprietorship EntityOnly Protects Sole Proprietorship Entity

• Double JeopardyDouble Jeopardy

5th Amendment – Double Jeopardy5th Amendment – Double Jeopardy5th Amendment – Double Jeopardy5th Amendment – Double JeopardyHUDSON v. UNITED STATESHUDSON v. UNITED STATES

118 S.Ct. 488 (1997)118 S.Ct. 488 (1997)

FACTS: Petitioners were assessed civil penalties and were later indicted on FACTS: Petitioners were assessed civil penalties and were later indicted on charges arising out of the same transaction. Petitioners moved to charges arising out of the same transaction. Petitioners moved to dismiss the indictment on Double Jeopardy grounds.dismiss the indictment on Double Jeopardy grounds.

ISSUE: Is the Double Jeopardy Clause of the Fifth Amendment a bar to ISSUE: Is the Double Jeopardy Clause of the Fifth Amendment a bar to criminal prosecution?criminal prosecution?

DECISION: No.DECISION: No.

REASONS:REASONS:1. The Double Jeopardy Clause protects only against the imposition of 1. The Double Jeopardy Clause protects only against the imposition of multiple criminal punishments.multiple criminal punishments.2. Whether a particular punishment is criminal or civil is, at least initially, 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 a matter of statutory construction. If the statutory scheme is so punitive to transform the civil remedy into a criminal penalty, the Double to transform the civil remedy into a criminal penalty, the Double Jeopardy Clause may be violated.Jeopardy Clause may be violated.3. Neither the monetary penalties nor the debarment sanctions are so 3. Neither the monetary penalties nor the debarment sanctions are so punitive in form and effect to render them criminal.punitive in form and effect to render them criminal.


• 55thth- Miranda- Miranda– Right to remain silentRight to remain silent– Anything said can/will be used against youAnything said can/will be used against you– Right to consult with a lawyer, to have Right to consult with a lawyer, to have

lawyer present during interrogationlawyer present during interrogation– Cannot afford lawyer, a lawyer will be Cannot afford lawyer, a lawyer will be

appointed (free of charge)appointed (free of charge)

Provides Protections To:Provides Protections To:– Speedy/Public TrialSpeedy/Public Trial

– Trial By JuryTrial By Jury

– Be Informed Of ChargeBe Informed Of Charge

– Confront AccuserConfront Accuser

– Subpoena WitnessesSubpoena Witnesses

– Assistance Of AttorneyAssistance Of Attorney



• 88thth- Protection against cruel and unusual - Protection against cruel and unusual punishmentpunishment

• Is capital punishment, or any particular Is capital punishment, or any particular method of capital punishment, cruel & method of capital punishment, cruel & unusual?unusual?


• Equal Protection Clause prohibits arbitrary Equal Protection Clause prohibits arbitrary discrimination discrimination

• Legislatures can’t outlaw constitutionally Legislatures can’t outlaw constitutionally protected behaviorprotected behavior– e.g. Free Speech, though some types of speech e.g. Free Speech, though some types of speech

can be considered criminal, e.g. the can be considered criminal, e.g. the communication of a threat.communication of a threat.


• Equal ProtectionEqual Protection– ““Strict Scrutiny” Test.Strict Scrutiny” Test.

• Laws that affect the “fundamental rights” of Laws that affect the “fundamental rights” of similarly situated individuals in a different similarly situated individuals in a different manner are subject to the “strict scrutiny” test. manner are subject to the “strict scrutiny” test.

• Any “suspect class” (race, national origin) must Any “suspect class” (race, national origin) must serve a “compelling state interest” which serve a “compelling state interest” which includes remedying past discrimination. includes remedying past discrimination.


• Equal ProtectionEqual Protection– Intermediate Scrutiny.Intermediate Scrutiny.

• Applied to laws involving gender or legitimacy.Applied to laws involving gender or legitimacy.• To be constitutional laws must be substantially To be constitutional laws must be substantially

related to important government objectives.related to important government objectives.


Equal Protection Equal Protection ““Rational Basis” Test.Rational Basis” Test.

• Applied to matters of economic or social Applied to matters of economic or social welfare.welfare.

• Laws will be constitutional if there is a rational Laws will be constitutional if there is a rational basis relating to legitimate government interest. basis relating to legitimate government interest. (WHS Realty v. Morristown, 1999)(WHS Realty v. Morristown, 1999)


• Due ProcessDue Process– 55thth and 14 and 14thth amendments provide “no amendments provide “no

person shall be deprived of life, liberty or person shall be deprived of life, liberty or property without due process of law.”property without due process of law.”

– Due Process includes both Procedural Due Process includes both Procedural and Substantive issues.and Substantive issues.


• Procedural Due ProcessProcedural Due Process– Procedures depriving an individual of her Procedures depriving an individual of her

rights must be fair and equitable.rights must be fair and equitable.– Constitution requires adequate notice and Constitution requires adequate notice and

a fair and impartial hearing before a a fair and impartial hearing before a disinterested magistrate.disinterested magistrate.


• Substantive Due ProcessSubstantive Due Process– Focuses on the content or substance of Focuses on the content or substance of

legislation.legislation.– e.g. Laws limiting e.g. Laws limiting fundamentalfundamental rights rights

(speech, privacy, religion) must have a (speech, privacy, religion) must have a “compelling state interest.”“compelling state interest.”

– e.g. Laws limiting non-fundamental rights e.g. Laws limiting non-fundamental rights require only a “rational basis”.require only a “rational basis”.


• Due Process requires that criminal statutes be Due Process requires that criminal statutes be clearly worded (so that they put an ordinary clearly worded (so that they put an ordinary person on notice).person on notice).– Question 4. Chicago v. Morales, Question 4. Chicago v. Morales, – The Court finds that an anti-loitering statute passed by The Court finds that an anti-loitering statute passed by

Chicago to help control street-gang activity and thereby Chicago to help control street-gang activity and thereby decrease the murder rate, is unconstitutionally vague and decrease the murder rate, is unconstitutionally vague and gives the police officer too much discretion. The Court gives the police officer too much discretion. The Court suggests how it might be made constitutional with some suggests how it might be made constitutional with some changes.changes.

– Note: In Chicago v. Youkhana The Court found that the Note: In Chicago v. Youkhana The Court found that the freedom to loiter for innocent purposes is part of the freedom to loiter for innocent purposes is part of the constitutionally protected liberty interest. constitutionally protected liberty interest.


• Due Process requires that criminal statutes be Due Process requires that criminal statutes be clearly worded (so that they put an ordinary person clearly worded (so that they put an ordinary person on notice).on notice).– Chaffee v. Roger, p.102Chaffee v. Roger, p.102

• Like the U.S. Supreme Court’s decision in Like the U.S. Supreme Court’s decision in Chicago v. Chicago v. MoralesMorales , the U.S. District Court in , the U.S. District Court in ChaffeChaffe finds the Nevada finds the Nevada intimidation statute unconstitutionally vague and gives police intimidation statute unconstitutionally vague and gives police officers too much discretion. Additionally, the court finds the officers too much discretion. Additionally, the court finds the Nevada statute to be overbroad. The Court remanded the Nevada statute to be overbroad. The Court remanded the issue to the Nevada Supreme Court so that the court could issue to the Nevada Supreme Court so that the court could narrow the meaning of “threat” and “intimidation.” In the narrow the meaning of “threat” and “intimidation.” In the overbreadth analysis of the law, the court finds that the overbreadth analysis of the law, the court finds that the statute stands to chill legitimate first amendment activities. statute stands to chill legitimate first amendment activities.


• Due Process requires that criminal statutes be Due Process requires that criminal statutes be clearly worded (so that they put an ordinary clearly worded (so that they put an ordinary person on notice).person on notice).– Houston v. HillHouston v. Hill

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


• Another loitering statute, overly broad?Another loitering statute, overly broad?– Some loitering statutes have been upheld, but Alexandria’s Some loitering statutes have been upheld, but Alexandria’s

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

Business CrimesBusiness Crimes• White-collar = non-violent, often business/financial White-collar = non-violent, often business/financial

(e.g. embezzlement, fraud, etc.)(e.g. embezzlement, fraud, etc.)– Sabine v. Texas, p.52Sabine v. Texas, p.52

• The court finds that OSHA does not preempt the state’s use of The court finds that OSHA does not preempt the state’s use of criminal law to prosecute Sabine and its president for criminally criminal law to prosecute Sabine and its president for criminally negligent homicide.negligent homicide.

– United States v. Dean, p.52-53United States v. Dean, p.52-53• The court found that the state did not need to prove the The court found that the state did not need to prove the

company manager knew about the statutory permit requirement company manager knew about the statutory permit requirement in order to convict him of ordering employees to dispose of in order to convict him of ordering employees to dispose of hazardous chemicals without the permit. He just had to know hazardous chemicals without the permit. He just had to know he was “treating” hazardous waste.he was “treating” hazardous waste.

• Is it fair to infer knowledge of regulations to business people in Is it fair to infer knowledge of regulations to business people in the business that is being regulated? Should it depend on an the business that is being regulated? Should it depend on an individual’s position in the company?individual’s position in the company?

Business CrimesBusiness Crimes• White-collar CrimeWhite-collar Crime

– United States v. Hong, p. 107United States v. Hong, p. 107• Hong is found liable under the “responsible corporate officer” Hong is found liable under the “responsible corporate officer”

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

Business CrimesBusiness Crimes

• White-collar CrimeWhite-collar Crime– Public policy justifies the imposition of Public policy justifies the imposition of

liability on otherwise innocent persons who liability on otherwise innocent persons who stand “in responsible relation to a public stand “in responsible relation to a public danger” when an act does not require danger” when an act does not require intent. A failure to act is sufficient to intent. A failure to act is sufficient to impose liability if the defendant had the impose liability if the defendant had the power to prevent the violation. power to prevent the violation. United United States v. ParkStates v. Park, 421 U.S. 659 (1975)., 421 U.S. 659 (1975).


– State of Connecticut v. Nanowski, p. 108State of Connecticut v. Nanowski, p. 108• The state does not have to prove Nanowski intended not to The state does not have to prove Nanowski intended not to

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


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

Business CrimesBusiness Crimes

• White Collar CrimeWhite Collar Crime– Recent trend to get tough (e.g. Recent trend to get tough (e.g.

Sarbanes-Oxley)Sarbanes-Oxley)– Often difficult to prove individual liability Often difficult to prove individual liability

for corporate crimesfor corporate crimes– State/Federal Sentencing Guidelines - State/Federal Sentencing Guidelines -

primary objective: consistencyprimary objective: consistency

OSHA

Some Specific Business CrimesSome Specific Business Crimes

• Worker Endangerment- Worker Endangerment- Occupational Safety & Health Occupational Safety & Health ActAct

• Obstruction Of Justice Obstruction Of Justice • False StatementFalse Statement

– BankBank– Federal Agency (This is what got Federal Agency (This is what got

Martha Stewart!)Martha Stewart!)

Some Crimes Affecting BusinessSome Crimes Affecting Business

• Robbery- aggravatedRobbery- aggravated• Burglary- aggravatedBurglary- aggravated• LarcenyLarceny

– GrandGrand– Petit/PettyPetit/Petty

• False PretensesFalse Pretenses• Receiving Stolen GoodsReceiving Stolen Goods• ArsonArson• ForgeryForgery


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


The crime of The crime of larcenylarceny was first identified some was first identified some 600 years ago and was initially narrowly 600 years ago and was initially narrowly interpreted. However, it was also typically interpreted. However, it was also typically punishable by death! Under common law, punishable by death! Under common law, larceny is the trespassory taking and larceny is the trespassory taking and asportation of the asportation of the tangible tangible personal property personal property of another with the intent to deprive him or of another with the intent to deprive him or her of it permanently. her of it permanently. TrespassTrespass limits the limits the crime to acts which involve a violation of the crime to acts which involve a violation of the right of possession--that is, lawful possession right of possession--that is, lawful possession prior to the act negates trespass.prior to the act negates trespass. Note that “taking” requires control, if only for a brief period of time.


In regard to larceny, In regard to larceny, intentintent requires that one requires that one intended to deprive the possessor intended to deprive the possessor "permanently""permanently" of the property. Although the of the property. Although the mens rea of larceny is the intent to steal, the mens rea of larceny is the intent to steal, the focus is on the loss to the possessor, not the focus is on the loss to the possessor, not the gain to the defendant. Thus, even if the thief did gain to the defendant. Thus, even if the thief did not gain in the taking, if the possessor lost in not gain in the taking, if the possessor lost in the process. Courts have also held that the process. Courts have also held that permanence can be more than keeping forever. permanence can be more than keeping forever. Permanence can include the intent to deprive Permanence can include the intent to deprive the possessor of economic significance, even if the possessor of economic significance, even if he plans on returning it later. It can also include he plans on returning it later. It can also include taking and exposing the property to a risk of taking and exposing the property to a risk of permanent loss, like driving a vehicle at very permanent loss, like driving a vehicle at very high speed.high speed.


Larceny by Trick or DeceptionLarceny by Trick or Deception occurs when the victim of larceny occurs when the victim of larceny is tricked by a misrepresentation of is tricked by a misrepresentation of fact into giving up possession of fact into giving up possession of property. This should not be property. This should not be confused with false pretenses, confused with false pretenses, where the victim is tricked into where the victim is tricked into giving up title to the property.giving up title to the property.


Grand larcenyGrand larceny is typically defined as larceny is typically defined as larceny of a significant amount of property. In the of a significant amount of property. In the U.S., it is often defined as an amount valued U.S., it is often defined as an amount valued at $200 or more (though in some jurisdictions at $200 or more (though in some jurisdictions the amount is as low as $100, and in others, the amount is as low as $100, and in others, such as South Carolina, as high as $2000). such as South Carolina, as high as $2000). Grand larceny is often classified as a felony Grand larceny is often classified as a felony with the concomitant possibility of a harsher with the concomitant possibility of a harsher sentence. A theft involving a lesser amount is sentence. A theft involving a lesser amount is generally classified as generally classified as petty larcenypetty larceny, which , which is usually a misdemeanor.is usually a misdemeanor.


RobberyRobbery is the crime of seizing property is the crime of seizing property through violence or intimidation. A through violence or intimidation. A perpetrator of a robbery is a perpetrator of a robbery is a robberrobber. . Because violence is an ingredient of most Because violence is an ingredient of most robberies, they sometimes result in the harm robberies, they sometimes result in the harm or murder of their victims. The precise or murder of their victims. The precise definition of robbery varies between definition of robbery varies between jurisdictions. The main elements of robbery jurisdictions. The main elements of robbery are a trespassory taking and asportation of are a trespassory taking and asportation of personal property from another’s person or personal property from another’s person or presence using either force or threat with the presence using either force or threat with the intent to steal the property.intent to steal the property.

Inchoate OffensesInchoate OffensesAn An inchoate act/offenseinchoate act/offense is a crime relating to the act is a crime relating to the act of preparing for or seeking to commit another crime. A of preparing for or seeking to commit another crime. A true inchoate offense occurs only when the intended true inchoate offense occurs only when the intended crime is not perpetrated. Absent a specific law, an crime is not perpetrated. Absent a specific law, an inchoate offense requires that the defendant have the inchoate offense requires that the defendant have the specific intent to commit the underlying crime. For specific intent to commit the underlying crime. For example, for a defendant to be guilty of the inchoate example, for a defendant to be guilty of the inchoate crime of crime of solicitation of murdersolicitation of murder, she must specifically , she must specifically intend to cause the death of a particular human being. intend to cause the death of a particular human being. It would not be enough for defendant to ask another to It would not be enough for defendant to ask another to kill the victim when she simply intended to scare the kill the victim when she simply intended to scare the victim. (Note that specific intent can be inferred, and victim. (Note that specific intent can be inferred, and many people would infer the specific intent to kill the many people would infer the specific intent to kill the victim simply by defendant asking another to do it).victim simply by defendant asking another to do it).

Inchoate OffensesInchoate OffensesExamples of inchoate offenses include:Examples of inchoate offenses include:

AttemptAttemptCConspiracyonspiracySolicitationSolicitation

Aiding or abettingAiding or abettingAccessoryAccessory

AttemptAttemptIn 360 B.C. Plato is attributed with stating that one who In 360 B.C. Plato is attributed with stating that one who “has a purpose and intention to slay another and only “has a purpose and intention to slay another and only wounds him should be regarded as a murderer.” wounds him should be regarded as a murderer.” However, about 1300, English Nobleman Henry of However, about 1300, English Nobleman Henry of Bracton stated that “For what harm did the attempt Bracton stated that “For what harm did the attempt cause, since the injury took no effect.” (As they say in cause, since the injury took no effect.” (As they say in common American parlance, “No harm, no foul.”) common American parlance, “No harm, no foul.”) Attempt was not a crime at early British common law. Attempt was not a crime at early British common law. However, by the 1400’s English judges began applying However, by the 1400’s English judges began applying the maxim “The will shall be taken for the deed” and the maxim “The will shall be taken for the deed” and English criminal records show parties began be English criminal records show parties began be criminally charged for attempt in England in the late criminally charged for attempt in England in the late 1500’s. In the 1600’s, Frances Bacon argued that “all 1500’s. In the 1600’s, Frances Bacon argued that “all acts of preparation should be punished.” By the 1700’s, acts of preparation should be punished.” By the 1700’s, English courts recognized a formal law of attempt. In English courts recognized a formal law of attempt. In Rex v. ScofieldRex v. Scofield (1784), a servant was charged for (1784), a servant was charged for attempting but failing to burn down his master’s house.attempting but failing to burn down his master’s house.

AttemptAttemptThe purpose of laws punishing attempts to commit a The purpose of laws punishing attempts to commit a crime is to discourage people from planning and crime is to discourage people from planning and attempting to commit “dangerous conduct.” attempting to commit “dangerous conduct.”

The essence of the crime of The essence of the crime of attemptattempt is that the is that the defendant has tried but failed to commit the defendant has tried but failed to commit the actus reusactus reus ("guilty act") of the full offense, but has the direct and ("guilty act") of the full offense, but has the direct and specific intent to commit that full offense. The normal specific intent to commit that full offense. The normal rule for establishing criminal liability is to prove an rule for establishing criminal liability is to prove an actus actus reusreus accompanied by the appropriate accompanied by the appropriate mens reamens rea at the at the relevant time.relevant time.

Early common law required some actual injury. Most Early common law required some actual injury. Most modern criminal statutes do not.modern criminal statutes do not.

AttemptAttemptWhether the Whether the actus reusactus reus of an attempt has occurred is a question of of an attempt has occurred is a question of fact for the jury to decide. A charge of attempt requires more than fact for the jury to decide. A charge of attempt requires more than mere intent (see People v. Murray). Note that the common law mere intent (see People v. Murray). Note that the common law used to distinguish between acts that were “merely preparatory” used to distinguish between acts that were “merely preparatory” and those which were “and those which were “sufficiently proximatesufficiently proximate”. When anyone is ”. When anyone is planning and executing a plan, there will always be a series of planning and executing a plan, there will always be a series of steps that have to be taken to arrive at the intended conclusion. steps that have to be taken to arrive at the intended conclusion. Some aspects of the execution will be too remote from the full Some aspects of the execution will be too remote from the full offense, e.g. watching the intended victim over a period of time to offense, e.g. watching the intended victim over a period of time to establish the routines, traveling to a store to buy necessary tools establish the routines, traveling to a store to buy necessary tools and equipment, etc. But the closer to the reality of committing the and equipment, etc. But the closer to the reality of committing the offense the potential wrongdoer moves, the greater the social offense the potential wrongdoer moves, the greater the social danger he or she becomes. Since the potential wrongdoer could danger he or she becomes. Since the potential wrongdoer could change his or her mind at any point before the crime is committed, change his or her mind at any point before the crime is committed, the state should wait until the last possible minute to ensure that the state should wait until the last possible minute to ensure that the intention is going to be realized.the intention is going to be realized.

AttemptAttemptIn English law, the test of proximity was that the defendant In English law, the test of proximity was that the defendant must have "...crossed the rubicon, burnt his boats, or must have "...crossed the rubicon, burnt his boats, or reached a point of no return". (reached a point of no return". (D.P.P. v. StonehouseD.P.P. v. Stonehouse [1977] 2 All ER 909 per Lord Diplock.) Another test is [1977] 2 All ER 909 per Lord Diplock.) Another test is whether the defendant has “reached that part of the series whether the defendant has “reached that part of the series of acts, which if not interrupted or frustrated or abandoned, of acts, which if not interrupted or frustrated or abandoned, would inevitably result in the commission of the intended would inevitably result in the commission of the intended offence” (Stephen's Digest of the Criminal Law).offence” (Stephen's Digest of the Criminal Law).

Former U.S. Supreme Court Justice Oliver Wendell Former U.S. Supreme Court Justice Oliver Wendell Holmes said “acts should be judged by their tendency”, Holmes said “acts should be judged by their tendency”, but that there “must be a dangerous proximity to success.”but that there “must be a dangerous proximity to success.”

AttemptAttempt The “The “res ipsa loquitorres ipsa loquitor test test””, also called the “, also called the “unequivocality testunequivocality test”) looks to ”) looks to

see if, at a certain point in time, the defendant had “no other purpose than the see if, at a certain point in time, the defendant had “no other purpose than the commission of a specific crime.” commission of a specific crime.”

The “The “probable desistance testprobable desistance test”” focuses on whether the defendant would focuses on whether the defendant would have followed through with the crime had the opportunity existed.have followed through with the crime had the opportunity existed.

The Model Penal Code (MPC) uses a The Model Penal Code (MPC) uses a ““substantial step testsubstantial step test””, looking at , looking at whether the defendant has taken a substantial step or steps towards the whether the defendant has taken a substantial step or steps towards the commission of the crime.commission of the crime.

The The ““indispensable act testindispensable act test”” asks whether the defendant had gotten control asks whether the defendant had gotten control of everything they needed to commit the crime. In most jurisdictions, of everything they needed to commit the crime. In most jurisdictions, possession of the materials to commit the crime is not sufficient evidence of possession of the materials to commit the crime is not sufficient evidence of attempt.attempt.

Most jurisdictions haveMost jurisdictions have specific attempt statutes related to specific crimes, specific attempt statutes related to specific crimes, such as attempted murder, or attempted robbery.such as attempted murder, or attempted robbery.

AttemptAttemptDefenses to a charge of attempt may include, Defenses to a charge of attempt may include, voluntary abandonment, legal impossibility or voluntary abandonment, legal impossibility or actual impossibilityactual impossibility. . Legal impossibility involves the Legal impossibility involves the situation where the defendant believes their intended situation where the defendant believes their intended act was illegal but it in fact was not. (Reminds me of act was illegal but it in fact was not. (Reminds me of the Sponge Bob Square Pants episode when Sponge the Sponge Bob Square Pants episode when Sponge Bob and Patrick “steal” a balloon on free balloon day! Bob and Patrick “steal” a balloon on free balloon day! Hey, give me a break, I have young kids.) Hey, give me a break, I have young kids.)

Another example of this is a case from Wisconsin Another example of this is a case from Wisconsin where the defendant tried to receive a stolen Harley-where the defendant tried to receive a stolen Harley-Davidson Motorcycle which it turned out was not Davidson Motorcycle which it turned out was not actually stolen (actually stolen (State v. KordasState v. Kordas, N.W.2d 483 (Wis. , N.W.2d 483 (Wis. 1995).1995).

Note that both American and English law, criminal Note that both American and English law, criminal attempt usually applies even though the facts are such attempt usually applies even though the facts are such that the commission of the offense is actually that the commission of the offense is actually impossible, so long as the defendant believes that he is impossible, so long as the defendant believes that he is about to break the law and intends to commit the about to break the law and intends to commit the relevant full offense. (relevant full offense. (State v. HainesState v. Haines))

ConspiracyConspiracyAs a legal term, a As a legal term, a conspiracyconspiracy is an is an agreement of two or more people to agreement of two or more people to commit a crime. The agreement is the commit a crime. The agreement is the actus reusactus reus and the intent to both agree and the intent to both agree and act constitute the and act constitute the mens rea. mens rea. In In some jurisdictions, the agreement some jurisdictions, the agreement alone is sufficient to bring a charge of alone is sufficient to bring a charge of conspiracy. Other jurisdictions require conspiracy. Other jurisdictions require ““substantial stepssubstantial steps” or “” or “overt actsovert acts”.”.

ConspiracyConspiracyIn In Hyde v. U.S.,Hyde v. U.S., (1912), Justice Holmes (1912), Justice Holmes stated that “if an overt act is required, it stated that “if an overt act is required, it does not matter how remote the act may be does not matter how remote the act may be from accomplishing the purpose, if done to from accomplishing the purpose, if done to effect it.” As to the parties to a conspiracy, effect it.” As to the parties to a conspiracy, most modern criminal statutes apply a most modern criminal statutes apply a unilateral approachunilateral approach whereby all whereby all conspirators need not necessarily be in conspirators need not necessarily be in agreement with all others or even be aware agreement with all others or even be aware of the other conspirators, and failure to of the other conspirators, and failure to convict one party to an alleged conspiracy convict one party to an alleged conspiracy does not prevent others from being does not prevent others from being convicted.convicted.

ConspiracyConspiracyIn In ““wheel conspiracieswheel conspiracies”, one of more ”, one of more defendants participate in every defendants participate in every transaction, as the transaction, as the “hub”“hub” of the of the conspiracy.conspiracy.

In In ““chain conspiracieschain conspiracies””, participants , participants at one end of the chain may no nothing at one end of the chain may no nothing of conspirators at the other end of the of conspirators at the other end of the chain. Drug smuggling conspiracies chain. Drug smuggling conspiracies are often of this type.are often of this type.

ConspiracyConspiracyDefenses: Defenses: Mistake of law or factMistake of law or fact are often acceptable defenses to a are often acceptable defenses to a charge of conspiracy. charge of conspiracy. WithdrawalWithdrawal however is usually not a defense, however is usually not a defense, since the crime of conspiracy is since the crime of conspiracy is considered to be complete when considered to be complete when the parties first enter into an the parties first enter into an agreement.agreement.

ConspiracyConspiracyUNITED STATES OF AMERICA v. HUGHES AIRCRAFT CO. INC.UNITED STATES OF AMERICA v. HUGHES AIRCRAFT CO. INC.

20 F.3d 974 (9th Cir. 1994)20 F.3d 974 (9th Cir. 1994)

• FACTS: Hughes Aircraft contractually agreed to supply the United States with microelectronic FACTS: Hughes Aircraft contractually agreed to supply the United States with microelectronic circuits to be used in weapons defense systems. The results of the testing of these circuits circuits to be used in weapons defense systems. The results of the testing of these circuits was falsified by Donald LaRue, a Hughes Aircraft employee. Other employees informed was falsified by Donald LaRue, a Hughes Aircraft employee. Other employees informed LaRue’s supervisors of the false testing reports. No actions were taken against LaRue, and LaRue’s supervisors of the false testing reports. No actions were taken against LaRue, and the United States was not informed of the fraudulent test results. Both Hughes Aircraft and the United States was not informed of the fraudulent test results. Both Hughes Aircraft and LaRue were indicted and tried on charges of conspiracy to default. The trial jury found LaRue were indicted and tried on charges of conspiracy to default. The trial jury found Hughes Aircraft guilty, but LaRue was acquitted. Hughes Aircraft appealed its conviction Hughes Aircraft guilty, but LaRue was acquitted. Hughes Aircraft appealed its conviction arguing that it cannot be guilty of conspiracy if the alleged co-conspirator was found not guilty.arguing that it cannot be guilty of conspiracy if the alleged co-conspirator was found not guilty.

• ISSUE: Can Hughes Aircraft be found guilty of engaging in a conspiracy if its alleged co-ISSUE: Can Hughes Aircraft be found guilty of engaging in a conspiracy if its alleged co-conspirators are found not guilty?conspirators are found not guilty?

• DECISION: Yes.DECISION: Yes.

• REASONS:REASONS:

• 1. The conviction of one co-conspirator is valid even when the alleged co-conspirators are 1. The conviction of one co-conspirator is valid even when the alleged co-conspirators are acquitted.acquitted.

• 2. A corporation may be liable for conspiracies entered into by its employees.2. A corporation may be liable for conspiracies entered into by its employees.• 3. Conspiracies exist when more than one corporate employee works to defraud the 3. Conspiracies exist when more than one corporate employee works to defraud the

government.government.• 4. Since LaRue’s supervisors failed to act after receiving information about LaRue’s 4. Since LaRue’s supervisors failed to act after receiving information about LaRue’s

wrongdoing.wrongdoing.

SolicitationSolicitationSolicitationSolicitation consists of a person inciting, counseling, consists of a person inciting, counseling, advising, urging, or commanding another to commit a advising, urging, or commanding another to commit a crime with the specific intent that the person solicited crime with the specific intent that the person solicited commit the crime. It is not necessary that the person commit the crime. It is not necessary that the person actually commit the crime, nor is it necessary that the actually commit the crime, nor is it necessary that the person solicited be willing or able to commit the crime person solicited be willing or able to commit the crime (such as if the "solicitee" were an undercover police (such as if the "solicitee" were an undercover police officer).officer).

For example, if A commands B to assault C and A For example, if A commands B to assault C and A intends for B to assault C, then A is guilty of solicitation. intends for B to assault C, then A is guilty of solicitation.

Note that solicitation can apply to just about any criminal Note that solicitation can apply to just about any criminal act. Examples might be solicitation of murder, act. Examples might be solicitation of murder, solicitation of prostitution, or solicitation of a bribe.solicitation of prostitution, or solicitation of a bribe.

Aiding And AbettingAiding And AbettingAbettingAbetting (from the Old French to bait or urge dogs (from the Old French to bait or urge dogs upon someone) involves instigating or assisting in upon someone) involves instigating or assisting in the commission of an offence. An the commission of an offence. An abettorabettor differs differs from an accessory in that he must be present at the from an accessory in that he must be present at the commission of the crime; all abettors (with certain commission of the crime; all abettors (with certain exceptions) are principals, and, in the absence of exceptions) are principals, and, in the absence of specific statutory provision to the contrary, are specific statutory provision to the contrary, are punishable to the same extent as the actual punishable to the same extent as the actual perpetrator of the offence. A person may in certain perpetrator of the offence. A person may in certain cases be convicted as an abettor in the commission cases be convicted as an abettor in the commission of an offence in which he or she could not be a of an offence in which he or she could not be a principal, e.g. a woman or boy under fourteen years principal, e.g. a woman or boy under fourteen years of age in aiding rape. More recently, an abbetor is of age in aiding rape. More recently, an abbetor is generally known as an generally known as an accompliceaccomplice..

AccessoryAccessoryAnyone who aids, counsels, encourages or assists in the Anyone who aids, counsels, encourages or assists in the preparation for a crime, but who is not actually present in preparation for a crime, but who is not actually present in the commission of the crime, may be an “the commission of the crime, may be an “accessory accessory before the factbefore the fact”. At common law an accessory before the ”. At common law an accessory before the fact could not be convicted unless and until a principal fact could not be convicted unless and until a principal was convicted. However, many modern-day criminal law was convicted. However, many modern-day criminal law statutes have removed this requirement. An accessory statutes have removed this requirement. An accessory before the fact is often punished at the same level as a before the fact is often punished at the same level as a principal. principal.

Any person who gives aid, comfort or shelter to a Any person who gives aid, comfort or shelter to a criminal with the purpose of assisting same in avoiding criminal with the purpose of assisting same in avoiding arrest after a the crime has been committed, but who was arrest after a the crime has been committed, but who was not present during the crime, may be an “not present during the crime, may be an “accessory after accessory after the factthe fact”. Accessories after the fact are usually punished ”. Accessories after the fact are usually punished at a lesser level than principals.at a lesser level than principals.

FraudFraud• Elements:Elements:

– Intention To MisleadIntention To Mislead– Misstatement Of FactMisstatement Of Fact– Justifiable RelianceJustifiable Reliance– InjuryInjury

• TypesTypes– Securities FraudSecurities Fraud– Health Care FraudHealth Care Fraud– Mail & Wire FraudMail & Wire Fraud

securities

Health

CareMail &Wire

FRAUD

Mail And Wire Fraud

• Interstate CommunicationInterstate Communication

• Scheme To Defraud- Course Of Action To Scheme To Defraud- Course Of Action To Deceive OthersDeceive Others

• Legal Aspects- Statement (Material Fact) Legal Aspects- Statement (Material Fact) Known To Be Untrue Or Disregards TruthKnown To Be Untrue Or Disregards Truth– Intent To Defraud- Act KnowinglyIntent To Defraud- Act Knowingly

– Good FaithGood Faith

Mail And Wire FraudMail And Wire FraudSCHMUCK v. UNITED STATESSCHMUCK v. UNITED STATES

109 S.Ct. 1443 (1989)109 S.Ct. 1443 (1989)

FACTS: Wayne Schmuck bought and sold used cars. Schmuck’s fraudulent scheme FACTS: Wayne Schmuck bought and sold used cars. Schmuck’s fraudulent scheme involved rolling back the odometer on used cars and selling them for inflated prices due to involved rolling back the odometer on used cars and selling them for inflated prices due to low mileage. Schmuck was charged with mail fraud since the car title certificate was low mileage. Schmuck was charged with mail fraud since the car title certificate was mailed to the Wisconsin Department of Transportation. These mailings and the issuance mailed to the Wisconsin Department of Transportation. These mailings and the issuance of new title certification were the necessary steps in completing the sales transaction. of new title certification were the necessary steps in completing the sales transaction. Schmuck argued he cannot be convicted of mail fraud since he did not mail any Schmuck argued he cannot be convicted of mail fraud since he did not mail any documents. The trial court resulted in a conviction. The appellate court affirmed the documents. The trial court resulted in a conviction. The appellate court affirmed the conviction. Schmuck filed for and was granted certiorari.conviction. Schmuck filed for and was granted certiorari.

ISSUE: Can Schmuck be guilty of mail fraud when he did not mail anything related to the ISSUE: Can Schmuck be guilty of mail fraud when he did not mail anything related to the fraud?fraud?

DECISION: Yes.DECISION: Yes.

REASONS:REASONS:1. Schmuck’s rolling back the odometer constitutes fraud.1. Schmuck’s rolling back the odometer constitutes fraud.2. The mailing (by the buyer) of the title certificate forms is an essential element to the 2. The mailing (by the buyer) of the title certificate forms is an essential element to the completion of the fraudulent transaction.completion of the fraudulent transaction.3. Although Schmuck did not mail anything, his conviction of the mail fraud charge is 3. Although Schmuck did not mail anything, his conviction of the mail fraud charge is upheld since the mailing clearly was necessary to complete the fraudulent transaction upheld since the mailing clearly was necessary to complete the fraudulent transaction

Bankruptcy CrimesBankruptcy Crimes• Falsify InformationFalsify Information

• False ClaimFalse Claim

• Concealment of AssetsConcealment of Assets

Racketeer Influenced &Racketeer Influenced &Corrupt Organizations Act(1970) Corrupt Organizations Act(1970)

(RICO)(RICO)• LiabilityLiability

– Use/Invest Income From Prohibited Activities Use/Invest Income From Prohibited Activities – To Acquire/Maintain Interest In Prohibited To Acquire/Maintain Interest In Prohibited

EnterpriseEnterprise– Conducts/Participates/Conspires In Prohibited Conducts/Participates/Conspires In Prohibited

EnterpriseEnterprise• Prohibited ActivityProhibited Activity

– Pattern Of RacketeeringPattern Of Racketeering– Collection Of Unlawful DebtCollection Of Unlawful Debt

• Allows for Seizure of AssetsAllows for Seizure of Assets• Allows for Treble DamagesAllows for Treble Damages

Racketeer Influenced &Racketeer Influenced &Corrupt Organizations Act(1970) (RICO)Corrupt Organizations Act(1970) (RICO)

H.J. INC. v. NORTHWESTERN BELL TELEPHONE COMPANYH.J. INC. v. NORTHWESTERN BELL TELEPHONE COMPANY109 S.Ct. 2893 (1989)109 S.Ct. 2893 (1989)

FACTS: A class action suit, with H.J. Inc. as the plaintiff, sought an injunction and triple FACTS: A class action suit, with H.J. Inc. as the plaintiff, sought an injunction and triple damages in a RICO suit against Northwestern Bell. The basis for the RICO claims arises damages in a RICO suit against Northwestern Bell. The basis for the RICO claims arises from employees of Northwestern Bell bribing members of the Minnesota Public Utilities from employees of Northwestern Bell bribing members of the Minnesota Public Utilities Commission related to the rates that Northwestern Bell charges. The trial court dismissed Commission related to the rates that Northwestern Bell charges. The trial court dismissed this suit since it concluded there was no pattern of wrongdoing. The appellate court affirmed. this suit since it concluded there was no pattern of wrongdoing. The appellate court affirmed. H.J. Inc. received certiorari from the Supreme Court. H.J. Inc. received certiorari from the Supreme Court.

ISSUE: Does RICO require distinct actions of illegality to find a pattern of racketeering?ISSUE: Does RICO require distinct actions of illegality to find a pattern of racketeering?

DECISION: No.DECISION: No.

REASONS:REASONS:

1. A pattern is found in establishing a relationship among the illegal acts (predicates) and the 1. A pattern is found in establishing a relationship among the illegal acts (predicates) and the threat of continuing illegal activity.threat of continuing illegal activity.2. The evidence presented in this case shows numerous bribes being paid over a 6-year 2. The evidence presented in this case shows numerous bribes being paid over a 6-year period.period.3. These multiple examples of predicates and the likelihood the bribes would continue satisfy 3. These multiple examples of predicates and the likelihood the bribes would continue satisfy the requirements of a RICO claim.the requirements of a RICO claim.

• Cedric Kushner Promotions, Ltd. v. Don King, p.110Cedric Kushner Promotions, Ltd. v. Don King, p.110– The Supreme Court held that fight promoter Don King, a natural The Supreme Court held that fight promoter Don King, a natural

person, is a legally different entity from Don King Productions, person, is a legally different entity from Don King Productions, and therefore could be sued under RICO even though King was and therefore could be sued under RICO even though King was the only shareholder and president of Don King Productions.the only shareholder and president of Don King Productions.

– Note that this is a civil RICO suit.Note that this is a civil RICO suit.

– Kushner argued that King’s illegal activities resulted in the Kushner argued that King’s illegal activities resulted in the cancellation of Kushner’s scheduled fights. King also argued that cancellation of Kushner’s scheduled fights. King also argued that he could not be sued under the statute because he was an he could not be sued under the statute because he was an employee acting within the scope of his employment. While the employee acting within the scope of his employment. While the Second Circuit accepted this argument, the Supreme Court Second Circuit accepted this argument, the Supreme Court rejected it because it would immunize from RICO liability many of rejected it because it would immunize from RICO liability many of those at whom the statute directly aims—high ranking individuals those at whom the statute directly aims—high ranking individuals in an illegitimate criminal enterprise who, seeking to further the in an illegitimate criminal enterprise who, seeking to further the purpose of that enterprise, act within the scope of their authority. purpose of that enterprise, act within the scope of their authority.

Racketeer Influenced &Racketeer Influenced &Corrupt Organizations Act(1970) (RICOCorrupt Organizations Act(1970) (RICO

• The Supreme Court has long expressed a wish for Congress The Supreme Court has long expressed a wish for Congress to rein in RICO, some recent cases show a willingness to to rein in RICO, some recent cases show a willingness to begin to do what Congress has refused to do. The Justice begin to do what Congress has refused to do. The Justice Department has voluntarily reigned in its use of RICO in Department has voluntarily reigned in its use of RICO in certain instances by limiting the seizure of assets of RICO certain instances by limiting the seizure of assets of RICO defendants and limiting its use in cases where the defendant defendants and limiting its use in cases where the defendant is charged with filing false tax returns. Note that over half the is charged with filing false tax returns. Note that over half the states have adopted ‘baby RICO’ statutes, so companies states have adopted ‘baby RICO’ statutes, so companies could face liability in multiple jurisdictions. could face liability in multiple jurisdictions.

• The ability to recover treble damages has led to the use of The ability to recover treble damages has led to the use of RICO in a wide variety of suits from employment cases, to RICO in a wide variety of suits from employment cases, to abortion picketing, to securities sales. Jim and Tammy abortion picketing, to securities sales. Jim and Tammy Bakker were sued under civil RICO.Bakker were sued under civil RICO.

Racketeer Influenced &Racketeer Influenced &Corrupt Organizations Act(1970) (RICOCorrupt Organizations Act(1970) (RICO

Cyber CrimeCyber Crime• Hacker (Cracker)- Unlawful Access To Hacker (Cracker)- Unlawful Access To

Electronic InformationElectronic Information

• Electronic TheftElectronic Theft– Trade SecretsTrade Secrets– Personnel RecordsPersonnel Records– Customer ListsCustomer Lists

Example of Proving Elements of a Example of Proving Elements of a Crime: Common Law BurglaryCrime: Common Law Burglary

• (a).(a). breaking (a forcible entry concept)breaking (a forcible entry concept)• (b).(b). and enteringand entering• (c).(c). the dwelling of anotherthe dwelling of another• (d).(d). with intent to commit a felony thereinwith intent to commit a felony therein• (e).(e). by the defendantby the defendant

• (Note: in some jurisdictions must also be at (Note: in some jurisdictions must also be at night)night)


– Is the defendant guilty of burglary if:Is the defendant guilty of burglary if:• (a).(a). He opened the victim’s door, entered He opened the victim’s door, entered

his house and took a stereo he’d seen through the his house and took a stereo he’d seen through the window? window?

• (b).(b). Same facts as above, but defendant Same facts as above, but defendant walked through an open door? walked through an open door?

• (c).(c). Same facts as (a), but defendant Same facts as (a), but defendant entered by pushing already open door three inches entered by pushing already open door three inches further open? .further open? .

• (d).(d). If the defendant broke down the If the defendant broke down the victim’s door, and entered her home with the intent of victim’s door, and entered her home with the intent of raping her? raping her?

• (e).(e). If the defendant had a trained monkey If the defendant had a trained monkey open the victim’s window, enter and steal the stereo?open the victim’s window, enter and steal the stereo?


• (a).Yes. All the required elements are present.(a).Yes. All the required elements are present.• (b).No, no “breaking” present; defendant is liable for (b).No, no “breaking” present; defendant is liable for

larceny (theft), though.larceny (theft), though.• (c).Yes, any use of force, however slight, is enough (c).Yes, any use of force, however slight, is enough

for breaking.for breaking.• (d).Yes. Rape is a felony and all elements of burglary (d).Yes. Rape is a felony and all elements of burglary

are present. are present. • (e). Yes. The monkey is an “agent of the defendant’s (e). Yes. The monkey is an “agent of the defendant’s

will” and all the elements are present. (Note: In many will” and all the elements are present. (Note: In many cases a child used by an adult to commit a crime cases a child used by an adult to commit a crime may also be considered this.)may also be considered this.)

• e.g. Prostitution, Marijuana, Sodomy, e.g. Prostitution, Marijuana, Sodomy, etc.etc.– Difficult to enforceDifficult to enforce– Facilitate corruptionFacilitate corruption– Overburden the courts and policeOverburden the courts and police– Foster disrespect for the lawFoster disrespect for the law

Should “Victimless Crimes” Be Should “Victimless Crimes” Be Decriminalized?Decriminalized?

CHAPTER 5 CRIMES. Crime = Public Wrongs FelonyFelony –Serious Offenses (e.g. murder, rape, arson)...

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Transcript of CHAPTER 5 CRIMES. Crime = Public Wrongs FelonyFelony –Serious Offenses (e.g. murder, rape, arson)...