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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)
Crime = Public Wrongs
• Misdemeanors
– Lesser Offenses (e.g. traffic
offenses, disorderly conduct)
– Generally Punishable by Fines or
Short Confinement
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)
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
Criminal Intent
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
– Sanitation Violations (see e.g. U.S. v.
Park, 421 U.S. 658 (1975)
Essentials of Crime

• 4) Capacity (cont.)
– 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.
– Diminished Capacity
• “Twinkie Defense”
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 v California, 1992).
• Juries tend to be hostile to the insanity defense
Essentials of Crime
4) Capacity – Insanity Tests
– M’Naghten (Knowledge of Right and Wrong) Test: This test, based on the 1843 case
of Daniel M’Naghten who killed the British Prime Minister’s Secretary, states that a
person may be "insane" if "...at the time of the committing of the act, the party accused
was laboring under such a defect of reason, arising from a disease of the mind, as not
to know the nature and quality of the act he was doing, or, if he did know it, that he did
not know what he was doing was wrong." This test still applies in the majority of
American jurisdictions. For a case applying this test see Serritt v. State WL 21182608
(Ga.App. 2003).
– Irresistible Impulse Test: a person may have known an act was illegal; but, because of
a mental impairment, they couldn't control their actions. For example, in 1994, Lorena
Bobbitt was found not guilty of the felony of "malicious wounding" (the equivalent of
mayhem), when her defense argued that an irresistible impulse led her to cut off her
husband's penis. In the late nineteenth century some states and federal courts in the
United States, dissatisfied with the M'Naghten rule, adopted the irresistible impulse test.
This test, which had first been used in Ohio in 1834, emphasized the inability to control
one's actions. A person who committed a crime during an uncontrollable "fit of passion"
was considered insane and not guilty under this test.
– Durham Test: This test, first set forth the New Hampshire Supreme Court in 1871, and
later adopted by the U.S. Court of Appeals for the D.C. Circuit in 1954 states that "... an
accused is not criminally responsible if his unlawful act was the product of mental
disease or defect". After the 1970s, US jurisdictions have tended to not recognize this
argument as it places emphasis on "mental disease or defect" and thus on testimony by
psychiatrists and is argued to be somewhat ambiguous.
Essentials of Crime

4) Capacity – Insanity Tests


– The Model Penal Code sets forth the
Substantial Capacity Test. This test states that
insanity should be defined as a lack of
substantial capacity to control one's behavior.
Substantial capacity is defined as: "the mental
capacity needed to understand the
wrongfulness of [an] act, or to
conform...behavior to the...law." For a case
applying this test see State v. Quinet, 752 A.2d
490 (Conn. 2000).
Essentials of Crime

4) Capacity – Insanity
Note that 4 states, Idaho,
Montana, Utah and Kansas have
eliminated the insanity defense
altogether!
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/Refor
m/2005/Death-Penalty-
Juveniles1mar05.htm
Essentials of Crime
Motive
Is the desire or inducement which
incites or stimulates a person to do an
act as opposed to “intent” which is the
purpose or resolve to do an act...but
not the “reason” for it.

Motive is not an essential element of a


crime!
Essentials of Crime
Consciousness

e.g. In King v. Cogdon, Supreme Court


of Victoria, Australia (1950), the
defendant was believed to affected by
“somnambulism” (sleepwalknig) and
as a result was not held liable for the
murder of her only child.
Affirmative Defenses
An affirmative defense is a defense used to limit or excuse a defendant’s
liability, even if the plaintiff or prosecutor’s claim is otherwise proven.
Examples of affirmative defenses in a civil law context include: arbitration and
award, accord and satisfaction, contributory negligence, assumption of risk,
incompetence, statute of frauds, sovereign immunity or agreed to contractual
limitations.
Examples of affirmative defenses in a criminal law context include the merger
doctrine, insanity, diminished capacity, self-defense, necessity, or the “battered
woman syndrome”.
Some affirmative defenses, like age, duress, consent or intoxication might apply
in either a civil or criminal context.
What is the burden of production?
Affirmative defenses must be timely pleaded by the defendant in order for the
court to consider it, or else it is considered waived by the defendant.
Who has the burden of proof as to an affirmative defense?
Because affirmative defenses require the assertion of facts beyond those
claimed by the plaintiff or prosecutor, generally the party pleading an affirmative
defense has the burden of proof on that defense (though some states shift may
shift this burden in the criminal context)
What is the burden of persuasion?
The burden of persuasion (or proof) is typically lower than beyond a reasonable
doubt. It could be either be clear and convincing evidence or, more often,
preponderance of the evidence.
Duress
Duress is 1)a threat, 2) resulting in reasonable belief, that 3)
the only way of avoiding serious personal injury or death to
others was 4) to commit the criminal act.

• Note that this defense may be a complete defense or, in


some cases, it might only result in a reduction in liability.
• In general, courts do not accept a defense of duress when
harm done by the defendant, is greater than the court's
perception of the harm threatened. This is a test of
proportionality.
• For a case where the defense of duress was used see
People v. Bowie, WL 1072088 (Cal.App. 4 Dist. 2002).

• Why might it be a bad idea to allow this to be a complete


defense to liability?
– Because it might encourage people to threaten others into
committing crimes.
Necessity
• This defense, sometimes called the “lesser or 2
evils defense” argues that the defendant should not
be held liable for their criminal actions because the
actions were urgently necessary to avert a threat of
serious physical injury or other harm.
• The most famous necessity case is The Queen v.
Dudley and Stephens (1884) involving 2 men adrift
in a lifeboat who cast lots with the third man, and
then killed and ate the loser.
• Note that “simply following orders” from a superior
does not generally qualify as either duress or
necessity (See U.S. v. Calley, 46 C.M.R. 1131
(1975) in re: the My Lai Massacre).
Self-Defense
• To successfully prove self-defense, or defense of another, one
must generally show 1) an unprovoked, 2) immediate threat of
bodily harm, 3) the necessity to use force in response and 4)
that the force used was reasonable under the circumstances. If
the defendant is the initial aggressor, that generally negates a
claim of self-defense (for a related case see State v. Pranckus,
815 A.2d 678 (Conn.App. 2003). However, some jurisdictions
recognize a withdrawal exception, whereby, if the defendant
was the initial aggressor, but then completely withdraws, they
may them recover the right to defend themselves.

• The “Retreat doctrine”


• Many jurisdictions follow a rule that self defense is only
acceptable as a legal defense when the user does not have
sufficient chance to flee. For a case addressing this see U.S. v.
Peterson, 483 F.2d 1222 (2nd Cir. 1973).
• Some jurisdictions recognize a stand your ground rule
whereby if you were not the initial aggressor you have a right to
stand your ground, even to the point of killing.
Mistake (Criminal Context)
Mistake of Law: The general rule is that
ignorance of the law is no excuse. However,
in some jurisdictions, inadequate publication
or official misstatement of the law may act as
a defense.

Mistake of Fact: May negate mens rea. For


example, if Alice has a purse that is very
similar to Mary’s, and she accidentally walks
off with the purse, there is no theft. However,
if upon discovery of her mistake she then fails
to return the purse, she may be guilty of theft
(or in the alternative, Mary may sue for
trespass to personal property or conversion
under tort law).
Punishment Historical Perspective
Prisons were used in Europe as early
as the 12th and 13th centuries.

In 1600s - 1700s America, punishment


consisted largely of branding,
whipping, and maiming
– Other punishments included fines,
abannition (banishment), and
humiliating devices like the stocks,
pillory, and public cages
– Capital punishment was also common

In the early 1800s the U.S. "invented"


the “penitentiary”
– The concept began with a number
of attempts at different types of
institutions such as the almshouse
and workhouse
Punishment Historical Perspective
Reformers wanted a more private, protective, and
reforming environment--solitary confinement.
– Origin of the prison
– Keep prisoners off the streets away from
ridicule and negative influences

1790 - Walnut Street Jail (Philadelphia) becomes


1st state prison

Reformers thought that prisoners could be


influenced to adopt a meaningful work habit and
Christian life-style
– Education and industrial/trade skills are still
the hallmark of prison training programs today
Punishment
Scriptural Perspective

Laws should
distinguish between
intentional and
unintentional wrongs
(Numbers 35:18-28;
Exodus 21:12-14).
Rationales for Punishment

The 4 rationales for


punishment?
– Deterrence
– Retribution/Restoration/Revenge
– Incapacitation
– Rehabilitation
Rationales for Punishment

Backward-Looking
Retribution/Restoration/Revenge

Forward-Looking
Deterrence, Incapacitation,
Rehabilitation
Retribution
An “eye for an eye”, intended as a
limitation not a license. A measured
response to restore the moral balance
upset by offense. The practice of "getting
even" with a wrongdoer. The suffering of
the wrongdoer is seen as good in itself,
even if it has no other benefits. One reason
for societies to include this judicial element
is to diminish the perceived need for street
justice, blood revenge, and vigilantism.
Sometimes called the “mirror-punishment”
or “poetic justice”.
Retribution
Retribution is found in “Old Testament” or
Hebrew Scriptures of the Bible (see
(Deuteronomy 19:21; Leviticus 24:20;
Exodus 21:22-24) and in the Code of
Hammurabi. It often involves punishing the
part of the body used to commit the crime.
Extreme examples include the amputation
of the hands of a thief, as still permitted by
Sharia (Islamic) law, or during the Middle
Ages in Europe; or disabling the foot or leg
of a runaway slave. A less extreme example
is the American tradition of putting soap
into a child's mouth for using inappropriate
language ("washing your mouth out with
soap").
Retribution
Another form of
retribution involves
mirroring the physical
method of the crime, e.g.
executing a murderer
with his own weapon.
Restoration
To make the victim right or
whole again. Examples might
include a vandal being made
to clean up the mess he has
made or a thief being made to
return stolen property or make
compensatory payments.
Revenge
Sometimes called
“retaliation”. Involves
a passionate and often
excessive “getting
back”.
Deterrence
Crime prevention through fear of
future suffering. It involves
attempting to dissuading
someone from future
wrongdoing, by making the
punishment severe enough that
the benefit gained from the
offense is outweighed by the cost
and probability of the
punishment.
Deterrence
Deterrence is a common
reason given for punishment,
however, using punishment
as a deterrent has the
fundamental flaw of assuming
that people will rationally
consider the consequences of
their acts before acting, which
they often don’t.
Deterrence
Two Types of Deterrence

1) Specific: preventing further crime


by offender

2) General: preventing crime by other


potential offenders
Deterrence
Operant Conditioning
Theory that punishment is the presentation of a
stimulus contingent on a response which results in a
decrease in response strength (as evidenced by a
decrease in the frequency of response). The
effectiveness of punishment in suppressing the
response depends on many factors, including the
intensity of the stimulus and the consistency with
which the stimulus is presented when the response
occurs. Additional factors that increase the
effectiveness of punishment include a verbal
explanation of the reason for the punishment.
Punishment can be divided into Positive punishment
(the application of an aversive stimulus, such as
pain) and Negative punishment (the removal or denial
of a desired object or condition).
Incapacitation
This rationale is predicated on the claim
that crime reduction efficacy occurs best
by keeping likely re-offenders out of
circulation or by rendering them unable to
perform bad acts. Imprisonment has the
effect of confining prisoners, physically
preventing them from committing crimes
against those outside and thus protecting
the community. The most dangerous
criminals may be sentenced to life
imprisonment or to irreparable alternatives
such as the death penalty or castration for
sexual offenders.
Incapacitation
Two types of Incapacitation

1) Collective: applied to categories


of offenders such e.g. drug
dealers, without regard to their
personal characteristics.

2) Selective: makes an effort to


identify high risk offenders.
Rehabilitation
Seeks to reduce the offender's
preference for criminality by
reforming their character.
Punishment often includes
physical labor accompanied by
vocational training. This is
different from deterrence in that
the goal is to change the
offender's outlook/attitude.
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.
Criminal Procedure
• Arrest
• Booking
• Initial appearance
• Preliminary hearing to
determine probable
cause
• Indictment or
information
• Arraignment
• Trial
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?
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
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
Probable Cause
• 4th Amendment - Requirement of Probable Cause
to search or arrest
– What is probable cause?
• Probable cause refers to the standard by which a law
enforcement officer may make a stop, arrest, conduct a
personal or property search or obtain a warrant. It is also
used to refer to the standard to which a grand jury believes
that a crime has been committed.
– On what is the concept of probable cause based?
• The term comes from the 4th Amendment to the U.S.
Constitution.
• “It is the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.”
Probable Cause
• 4th Amendment - Requirement of Probable Cause to search or
arrest
• What is the standard judicial definition for probable cause?
– The most widely held common definition is "a reasonable belief that a
crime has been committed". An alternative definition has been
proposed, "reason to believe that an injury had criminal cause", which
is claimed to be more protective of individual rights as was intended
by the authors of the Bill of Rights.
– In the context of warrants, the Oxford Companion to American Law
defines probable cause as "information sufficient to warrant a prudent
person's belief that the wanted individual had committed a crime (for
an arrest warrant) or that evidence of a crime or contraband would be
found in a search (for a search warrant)." "Probable cause" is a
stronger standard of evidence than a reasonable suspicion, but
weaker than what is required to secure a criminal conviction.
– Speaking in reference to probable cause to arrest, in Carroll v. United
States, 267 U.S. 132 (1934), the U.S. Supreme Court said that
probable cause is present when the trustworthy facts within the
officer’s knowledge are sufficient in themselves to justify a “person of
reasonable caution” in the belief that stolen property would be found
or that the person arrested committed the crime in question.
Probable Cause
• 4th Amendment - Requirement of Probable
Cause to search or arrest
• On what sources can a law enforcement
officer rely in making a determination as to
probable cause?
– When making a determination as to probable cause,
a law enforcement officer can rely on his own
observations, statements of witnesses, victims or
other officers. Even hearsay evidence can supply
probable cause if it is from a reliable source or is
backed up by other evidence.
• What types of sources may he not rely on?
– Mere rumor, innuendo or conjecture not supported
by the facts
Probable Cause
• 4th Amendment - Requirement of Probable Cause to
search or arrest
• May a law enforcement officer rely on information
supplied by paid informants to find probable
cause?
– This is a hotly debated question. In Aquilar v. Texas, 378 U.S.
108 (1964), the U.S. Supreme Court created a 2 prong test.
First the affidavit must show the basis of the informant’s
information and second, a reason why the informant should be
believed, for instance based on prior truthfulness.
– However, later in Illinois v. Gates, 462 U.S. 213 (1983), the
Court added that the “totality of the circumstances” must be
considered. Note that this case also lowered the threshold of
probable cause by ruling that a "substantial chance" or "fair
probability" of criminal activity could establish probable cause.
A better-than-even chance is not required
– Note that neither test requires that the informant be named in
the affidavit!
Probable Cause
• 4th Amendment -
Requirement of
Probable Cause to
search or arrest
• May probable cause
be established by an
animal?
– Yes, e.g. a drug sniffing
dog (see U.S. v. Ludwig,
10 F.3d 1523 (10th Cir.
1993))
Probable Cause
The 4th Amendment protects “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures . . .” U.S. Const. amend.
IV. “It is a well-settled principle of constitutional jurisprudence
that an arrest without probable cause constitutes an
unreasonable seizure in violation of the 4th Amendment.”
Ingram v. City of Columbus, 185 F.3d 579, 592-93 (6th Cir.
1999) (internal citation omitted). However, a warrantless arrest
by a law officer is reasonable under the 4th Amendment where
the arrest is in public and there is probable cause to believe that
a criminal offense has been or is being committed. United
States v. Watson, 423 U.S. 411, 417-24 (1976). “To determine
whether an officer had probable cause to arrest an individual,
we examine the events leading up to the arrest, and then
decide ‘whether these historical facts, viewed from the
standpoint of an objectively reasonable officer, amount to’
probable cause.” Maryland v. Pringle, 540 U.S. 366, 371 (2003)
(quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)),
quoted in United States v. Romero, 452 F.3d 610, 615-16 (6th
Cir. 2006).
Probable Cause
“An arresting officer’s state of
mind, except for the facts that
he knows, is irrelevant to the
existence of probable cause.”
Devenpeck v. Alford, 543 U.S.
146, 153, citing Whren v. United
States, 517 U.S. 806, 812-13
(1996).
Probable Cause
The Supreme Court has made it
clear that there is no requirement
“that the offense establishing
probable cause must be ‘closely
related’ to, and based on the same
conduct as, the offense identified
by the arresting officer at the time
of arrest . . . .” Devenpeck, 543 U.S.
at 153.
Search & Seizure
• 4th Amendment Protection against unreasonable searches &
seizures
– What is a “reasonable suspicion”?
• A reasonable suspicion is an articulable reason to suspect that a person
has engaged in or is planning to engage in a criminal act. To be valid, a
reasonable suspicion must convince an disinterested reasonable person
when described to him; a mere hunch or nebulous suspicion is not enough.
• The decision in Terry v. Ohio, 392 U.S. 1 (1968) established that some brief
seizures may be made without probable cause. If an officer has a reasonable
suspicion that a crime has been committed or will soon be committed, that
officer may briefly detain a suspect to frisk him for weapons and question
him. This is known as a "Terry stop."
• In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, (2004), the
court further established that a person may be required to identify himself to
an officer during such a stop. However, an arrest may not be made based on
a reasonable suspicion; probable cause is required. Further, a person is not
required to answer any other questions during a Terry stop, and the detention
must be brief.
Search & Seizure
Scope of Search
“Generally, the 4th Amendment and article I, § 20 of the North Carolina
Constitution require issuance of a warrant based on probable cause for
searches. However, our courts recognize an exception to this rule when the
search is based on the consent of the detainee.” State v. Jones, 96 N.C. App.
389, 397, 386 S.E.2d 217, 222 (1989) (citing Schneckloth v. Bustamonte, 412
U.S. 218, 219, 36 L. Ed. 2d 854, 858 (1973), appeal dismissed and disc. review
denied, 326 N.C. 366, 389 S.E.2d 809 (1990); Statev. Belk, 268 N.C. 320, 322, 150
S.E.2d 481, 483 (1966)). “The scope of the search can be no broader than the
scope of the consent.” Id. (citing United States v. Ross, 456 U.S. 798, 821, 72 L.
Ed. 2d 572, 591 (1982)). “When an individual gives a general statement of
consent without express limitations, the scope of a permissible search is not
limitless. Rather it is constrained by the bounds of reasonableness . . . .”
United States v. Strickland, 902 F.2d 937, 941 (11th Cir. 1990). “The standard
for measuring the scope of a suspect's consent under the 4th Amendment is
that of 'objective' reasonableness - what would the typical reasonable person
have understood by the exchange between the officer and the suspect?”
Florida v. Jimeno, 500 U.S. 248, 251, 114 L. Ed. 2d 297, 302 (1991) (citations
omitted); see also United States v. Urbina, 431 F.3d 305, 310 (8th Cir. 2005)
(“We measure the scope of consent under the Fourth Amendment using a
standard of objective reasonableness, considering what an objectively
reasonable person would have understood the consent to include.”) (citing
United States v. Fleck, 413 F.3d 883, 892 (8th Cir. 2005)).
4th Amendment
Search & Seizure - Vehicle Search
“Although an individual consenting to a vehicle search should expect that search to be
thorough, he need not anticipate that the search will involve the destruction of his vehicle
its parts or contents.” United States v. Strickland, 902 F.2d 937, 942 (11th Cir. 1990); see
also United States v. Garcia, 897 F.2d 1413, 1419-20 (7th Cir. 1990)(opening of door
panels during search “is inherently invasive” and extends beyond scope of general
consent to search); United States v. Gastellum, 927 F.Supp. 1386, 1390 (D. Colo.
1996)(searching panels of trunk, removing interior panels that had been fastened with
screws, pulling up carpet, and removing seats exceeded permissible scope of consent);
United States v. Orrego-Fernandez, 78 F.3d 1497, 1505-06 (10th Cir. 1996)(search did
not exceed scope of consent where police searched no hidden compartments); State v.
Swanson, 172 Ariz. 579, 583, 838 P.2d 1340, 1344 (1992), cert. denied, 507 U.S. 1006,
123 L. Ed. 2d 270 (1993)(even “unqualified consent to search a vehicle does not give law
enforcement officer's [sic] license, absent some further basis, to start ripping or tearing a
car apart. “[U]nless an individual specifically consents to police conduct that exceeds the
reasonable bounds of a general statement of consent, that portion of the search is
impermissible.” Strickland, 902 F.2d at 9 42 (reasonable person would not understand
general consent to search automobile as authorizing slashing of spare tire and
investigating its contents). Notwithstanding, [i]t is well settled that a vehicle may be
searched without either permission or a warrant if there is probable cause to believe that
contains contraband or other evidence which is subject to seizure under law and exigent
circumstances necessitate the search or seizure. A vehicle search conducted pursuant to
probable cause may include any item and compartment in the car that might contain the
object of the search. Moreover, such a search may include some injury to the vehicle or
the items within the vehicle, if the damage is reasonably necessary to gain access to a
specific location where the officers have probable cause to believe that the object of their
search is located.; see also State v. Poczontek, 90 N.C. App. 455, 457, 368 S.E.2d 659,
660-61 (1988) (“[a]n officer may search an automobile without a warrant if he has
probable cause to believe the vehicle contains contraband, and he has probable cause if
based upon the totality of the circumstances known to him 'he believes there is a “fair
probability that contraband or evidence of a crime will be found” therein.'”)
Search & Seizure

• 4th Amendment - Protection against


unreasonable searches & seizures
– Type of search
– Kyllo v. United States, 533 U.S. 27 (2001)
– 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.
Search & Seizure
4th Amendment - Protection against
unreasonable searches & seizures
Government inspections
In Marshall v. Barlow, 436 U.S.
307 (1978), the U.S. Supreme
Court held that government
inspectors do not have the right
to enter a business to conduct
an inspection without the consent of
the business owners or a warrant.
Search & Seizure

4th Amendment - Protection against


unreasonable searches & seizures

No warrant is required to:


1) Seize spoiled or contaminated food
2) Search certain highly regulated industries
such as liquor sales, gun sales and certain
forms of mining.
Search & Seizure
• 4th Amendment - Protection against unreasonable
searches & seizures
– Sobriety Checkpoints
– 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).
Search & Seizure
• 4th Amendment - Protection against unreasonable searches &
seizures
• Aerial Photographs of Open Areas of Commercial Property
• 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 4th 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 4th Amendment. Dow Chemical Co. v.
United States, 476 U.S. 227 (1986).
Search & Seizure

• 4th Amendment Protection against unreasonable searches &


seizures
• Car Passengers Belongings
• 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).
Self-Incrimination
• 5th Amendment - Privilege against self-incrimination
– No person “shall be compelled in any criminal
case to be a witness against himself.”
• This privilege does not apply in a civil
proceeding
• This protection applies only to “natural”
persons and not “artificial” persons (e.g.
corporations)
• Does Not Protect Against Being Required To
Produce Evidence
5th Amendment
Self-Incrimination
A criminal defendant has a right to remain silent
under the 5th Amendment to the United States
Constitution, as incorporated and binding upon the
states by the 14th Amendment, and under Article I,
Section 23 of the North Carolina Constitution. U.S.
Const. amend. V; U.S. Const. amend. XIV; N.C.
Const. art. I, sec. 23. “A defendant's silence after
receiving Miranda warnings cannot be used against
him as evidence of guilt.” State v. Best, 342 N.C. 502,
519, 467 S.E.2d 45, 55-56 (1996) (citing Doyle v. Ohio,
426 U.S. 610, 49 L. Ed. 2d 91 (1976) (holding that
when Miranda warnings are given, “it would be
fundamentally unfair and a deprivation of due
process to allow the arrested person's silence to be
used to impeach an explanation subsequently
offered at trial.”))
5 Amendment - Grand Jury
th

• Typically involves an impartial panel of 16


to 25 citizens of jurisdiction who
determine, after hearing state’s evidence,
whether probable cause exists to believe
that a crime has been committed and
whether to bring a matter to trial
• Starts with a presumption of innocence
• Typically no defense counsel are present
• Includes subpoena power
• Secret proceedings
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.
5th Amendment
Double Jeopardy
The United States Supreme Court has explained that
the Double Jeopardy Clause "serves the function of
preventing both successive punishment and
successive prosecution, and that the Constitution
was designed as much to prevent the criminal from
being twice punished for the same offence [sic] as
from being twice tried for it." Witte v. United States,
515 U.S. 389, 395-96, 132 L. Ed. 2d 351, 361, 115 S.
Ct. 2199, 2204 (1995) (internal citations and
quotation marks omitted). Accordingly, our Supreme
Court has recently explained that "[t]he Clause
protects against three distinct abuses: (1) a second
prosecution for the same offense after acquittal, (2) a
second prosecution for the same offense after
conviction, and (3) multiple punishments for the
sameoffense." State v. Tirado, 358 N.C. 551, 578, 599
S.E.2d 515, 534 (2004), cert. denied sub nom. Queen
v. North Carolina, 544 U.S. 909, 161 L. Ed. 2d 285,
125 S. Ct. 1600 (2005).
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.
5th Amendment
Double Jeopardy
In this case the Supreme Court refused to
incorporate the Double Jeopardy Clause of
the 5th Amendment into the Due Process
Clause of the 14th. To merit incorporation,
said Justice Benjamin N. Cardozo, a
provision of the Bill of Rights must be
essential to “a scheme of ordered liberty.”
Cardozo’s majority opinion suggested that
the 1st Amendment freedoms which had
been previously incorporated, represented
“the matrix, the indispensable condition, of
nearly every other form of freedom.” The
Double Jeopardy Clause, in Cardozo’s view,
lay on “a different plane of social and moral
values.” Palko v. Connecticut (1937).
5th Amendment
Double Jeopardy
Despite the fact that the North
Carolina Constitution contains
no express provision
prohibiting double jeopardy, it
is regarded as an "integral
part" of our Constitution's Law
of the Land Clause, N.C.
Const. art. I, § 19. State v.
Ballard, 280 N.C. 479, 482, 186
S.E.2d 372, 373 (1972).
6th Amendment
Provides Protections To:
– Speedy/Public Trial
– Trial By Jury
– Be Informed Of Charge
– Confront Accuser
– Subpoena Witnesses
– Assistance Of Attorney
Right to Confront Accusers
Does 2-way teleconferencing meet the requirement
that a defendant be allowed to confront their
accuser?

While some jurisdictions have allowed this,


especially in cases involving juvenile witnesses,
the U.S. Court of Appeals for the 11th Circuit recently
ruled that it does not (see U.S. v. Yates, 391 F.3rd
1182 (2004)). Note: the U.S. Supreme Court
has not yet ruled on this.
Sixth Amendment
Right to Counsel
Under the 6th Amendment, a person
charged with a crime is entitled to
counsel. See Powell v. Alabama, 287 U.S.
45, 66, 77 L. Ed. 158, 169 (1932). This
right attaches before the commencement
of trial, as the accused “requires the
guiding hand of counsel at every step in
the proceedings against him.” Id. at 69, 77
L.Ed. at 170.
Sixth Amendment
Right to Counsel
In Strickland v. Washington, the United States
Supreme Court provided a 2-prong test for a
defendant to establish ineffective assistance of
counsel. 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693
(1984). The test requires: First, the defendant must
show that counsel's performance was deficient. This
requires showing that counsel made errors so
serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that
the deficient performance prejudiced the defense.
This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.
Sixth Amendment
Right to Counsel
The North Carolina Supreme Court
has stated, “this court engages in a
presumption that trial counsel's
representation is within the
boundaries of acceptable
professional conduct” when
reviewing ineffective assistance of
counsel claims. State v. Roache, 358
N.C. 243, 280, 595 S.E.2d 381, 406
(2004).
“Miranda” Rights
• 5th & 6th Amendments –
“Miranda” warnings must
be given to criminal
suspects in police custody
– Right to remain silent
– Anything said can/will be
used against you
– Right to consult with a
lawyer, to have lawyer
present during interrogation
– If cannot afford lawyer, a
lawyer will be appointed
(free of charge)
from Miranda v. Arizona,
384 U.S. 436 (1966)
Exclusionary Rule
–Evidence obtained in violation of
constitutional procedures must
be excluded.
–Evidence derived from illegal
evidence is “fruit of the
poisonous tree.”
–Reason for: To deter police from
misconduct.
–(e.g. People v. McFarlan (2002))
Exclusionary Rule
• 4th, 5th, 6th Amendments - Exclusionary Rule:
Rule: Illegally obtained
evidence inadmissible (Recent Local Example):
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, 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, “Porn,
theft charges likely to be dropped: Judge says search by police illegal”, Raleigh News & Observer, 10/14/05.
Exclusionary Rule

• 4th, 5th, 6th Amendments - Exclusionary Rule: Illegally


obtained evidence inadmissible
• If a judge finds probable cause to issue a search warrant, only
to have a higher court later reverse that finding, does that
necessarily mean any evidence obtained as result is “tainted”
and must be thrown out under the “exclusionary rule”?
– Generally not according to U.S. v. Leon, 468 U.S. 897 (1984). The
justification here was that the officers acted on “good faith reliance” that
the judge made a correct finding.
• If an officer makes a search based on a reasonable belief that
the search was consented to, but in fact, it was not, does that
necessarily mean any evidence obtained as result is “tainted”
and must be thrown out under the “exclusionary rule”
– In Illinois v. Rodriguez, 497 U.S. 177 (1990), the U.S. Supreme Court
established that an officer who makes a search with a reasonable belief
that the search was consented to, does not have to provide a probable
cause for the search.
Exclusionary Rule
The exclusionary rule is a judicially fashioned remedy
aimed at deterring constitutional violations, the
application of which is appropriate when the Constitution
or a statute requires it. Sanchez-Llamas v. Oregon, 126
S. Ct. 2669, 2680 (2006); United States v. Caceres, 440
U.S. 741, 154-55 (1979); United States v. Giordano, 416
U.S. 505, 524 (1974) (in the absence of 4th Amendment
violation, suppression remedy depends upon provisions
of the statute); United States v. Ware, 161 F.3d 414,
424-25 (6th Cir. 1998). It is well-settled that
“[s]uppression of evidence . . has always been our
last resort, not our first impulse,” and the
exclusionary rule is only applicable“where its
remedial objectives are thought most efficaciously
served.” Hudson v. Michigan, 126 S. Ct. 2159, 2163
(2006).
Exclusionary Rule
Although exclusion is the proper remedy for some violations of the 4th Amendment, there
is no exclusionary rule generally applicable to statutory violations. Rather, the exclusionary
rule is an appropriate sanction for a statutory violation only where the statute specifically
provides for suppression as a remedy or the statutory violation implicates underlying
constitutional rights such as the right to be free from unreasonable search and seizure.
See Sanchez-Llamas, 126 S. Ct. at 2679-682 (finding that suppression is not an
appropriate remedy for violation of Article 36 of the Vienna Convention); United States v.
Donovan, 429 U.S. 413, 432 n.22 (1977) (denying exclusion for violation of wiretapping
statute, 18 U.S.C. § 2518); Ware, 161 F.3d at 424 (6th Cir. 1998) As provided by 8 U.S.C.
§ 1357(a)(2): (a) Any officer or employee of the Service authorized under regulations
prescribed by the Attorney General shall have power without warrant – (2) to arrest any
alien who in his presence or view is entering or attempting to enter the United States in
violation of any law or regulation made in pursuance of law regulating the admission,
exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he
has reason to believe that the alien so arrested is in the United States in violation of any
such law or regulation and is likely to escape before a warrant can be obtained for his
arrest, but the alien arrested shall be taken without unnecessary delay for examination
before an officer of the Service having authority to examine aliens as to their right to enter
or remaining the United States 8 U.S.C. § 1357(a)(2) Although we hold that application of
the exclusionary rule is not appropriate for the Government’s statutory violation of 8 U.S.C
§ 1357 in this case, we emphasize that this decision is based on the specific facts before
the court. Specifically, we note that the outcome would be different if the Government’s
warrantless arrest had not complied with the 4th Amendment, as discussed in Section
III.C. of this opinion. (“statutory violations, absent underlying constitutional violations, are
generally insufficient to justify imposition of the exclusionary rule”); United States v.
Meriwether, 917 F.2d 955, 960 (6th Cir. 1990) (holding that government violations of the
Electronic Communications Privacy Act do not warrant suppression of evidence).
Criminal Procedure Protections

• 8th Amendment Protection against cruel


and unusual punishment

• Is capital punishment, or any particular


method of capital punishment, cruel &
unusual?
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.
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.
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.
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)
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.
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.
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”.
Criminal Procedure Protections
• Due Process requires that criminal statutes be clearly
worded (so that they put an ordinary person on
notice).
– Chicago v. Morales, 527 U.S. 41 (1999)

The Court finds Chicago’s Gang Congregation (Anti-loitering)


Ordinance which was passed to help control street-gang
activity and thereby decrease the murder rate,
unconstitutionally vague and gives the police officer too much
discretion. Note that the Court also 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.
Criminal Procedure Protections

• Due Process requires that criminal statutes be


clearly worded (so that they put an ordinary person
on notice).
– Chaffee v. Roger, 311 F.Supp.2d 962. (2004)
• 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.
Criminal Procedure Protections

• Due Process requires that criminal statutes be


clearly worded (so that they put an ordinary
person on notice).
– Houston v. Hill, 482 U.S. 451 (1987)
• 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).
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 Northern Virginia
Chapter, American Civil Liberties Union v. Alexandria Va., 747
F. Supp. 324 (D. E. Va. 1990).
Business Crimes
Corporate Criminal Liability
A corporation may be held liable for crimes
committed by its agents or employees within the
course and scope of their employment. Obviously,
corporations cannot be imprisoned, but they can
be fined or denied certain legal privileges.
Corporate directors and officers are personally
liable for the crimes they commit, and may be liable
for the actions of employees under their
supervision under the “responsible corporate
officer” doctrine.
Business Crimes
Corporate Criminal Liability
Edward Hanousek, a roadmaster for the White Pass & Yukon Railroad in
Alaska, was responsi-ble for a rock quarry above the Skagway River. Next to
the quarry, and just beneath the surface,ran an oil pipeline. When the
quarry’s backhoe operator punctured the pipeline, 1,000 to 5,000 gal-lons of
oil were discharged into the river. Hanousek was charged with violation of
the criminal provisions of the Clean Water Act. A federal district court jury
convicted Hanousek, and the court imposed a sentence of six months
imprisonment, six months in a halfway house, six months supervised
release, and a fine of $5,000. Hanousek appealed, arguing that the statute
under which he was convicted violated his right to due process. The U.S.
Court of Appeals for the Ninth Circuit affirmed. The Clean Water Act is public
welfare legislation, which “is designed to protect the public from potentially
harmful or injurious items and may render criminal a type of conduct that a
reasonable person should know is subject to stringent public regulation.”
When “dangerous or deleterious devices or products or obnoxious 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.” Hanousek knew about the pipeline
and the danger that a puncture would pose. “Therefore, Hanousek should
have been alerted to the probability of strict regulation.” United States v.
Hanousek
Business Crimes
• White-collar = non-violent, often business/financial
(e.g. embezzlement, fraud, etc.)
– Sabine v. Texas
• 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, 414 F.3d 725, 729 (7th Cir. 2005)
• 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?
Business Crimes
• White-collar Crime
– United States v. Hong, 242 F.3d 528 (4th Cir.
2001)
• 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.
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).
Business Crimes
• White-collar Crime
– State of Connecticut v. Nanowski, 56 Conn. App.
649, 746 A.2d 177, cert. denied, 252 Conn. 952,
749 A.2d 1203 (2000)
• 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).
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).
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
Some Specific Business Crimes
• Worker Endangerment-
Occupational Safety & Health
Act
• Obstruction Of Justice
• False Statement
– Bank
– Federal Agency (This is what got
Martha Stewart!)

OS
HA
Corruption/Bribery
Bribery
Bribery of public officials is a crime. The bribe
can be of anything that the official considers
valuable. Commission of the crime occurs when
the bribe is tendered, the official does not have to
agree to do anything nor even accept the bribe.
In some states, commercial bribery, that is,
kickbacks and payoffs from an individual working
for one company to another individual working
for another company is a crime. Commercial
bribes are typically given to obtain proprietary
information, cover up an inferior product, or
secure new business. Industrial espionage
sometimes involves commercial bribery. Bribing
foreign officials to obtain favorable business
contracts is also a crime.
Corruption/Bribery
• Corruption exists in every country
and is endemic to some, especially
developing countries.
Africa: Corruption is perceived to be rampant
in Cameroon, Kenya, Angola, Uganda,
Madagascar and Nigeria. In Kenya, bribery
costs the average citizen 20% of their income.
In 2004, Kenyan President Kibaki launched a
“zero corruption” initiative. (Unfortunately, his
government was recently forced to resign due
to, you guessed it, corruption). No African
country was listed among the 25 least corrupt
countries in the most recent Transparency
International Survey (Botswana, which was
rated as Africa’s least corrupt nation, tied for
29th overall).
Corruption/Bribery
Asia: Corruption is perceived to be
rampant in Bangladesh and Indonesia. In
Indonesia, it is estimated that 20% of
business costs are bribes to bureaucrats.
The Financial Times recently reported that
“deep corruption [in China] is corroding
the exercise of state power.” Falsified
accounts used to cover up this corruption
have the effect of rendering China’s official
statistics “virtually meaningless.”
Corruption/Bribery
Latin America: Corruption is perceived to
be rampant in Paraguay. In Ecuador, it is
estimated the government could pay off its
foreign debt in five years if corruption was
brought under control. In Argentina,
corruption in the customs department
defrauded the government out of $3 billion
in revenues. Officials estimated that 30%
of all imports were being under-billed and
approximately $ 2.5 billion of goods were
brought into the country labeled “in
transit” to another country, thus illegally
avoiding import taxes altogether.
Corruption/Bribery
• In Albania, approximately one-third of potential
profits are lost to bribe payments that amount to
8% of inventory turnover.
• German companies are estimated to pay an
aggregate of over $ 3 billion a year in bribes to
obtain business contracts abroad.
• In industrial countries 15 % of businesses were
found to pay bribes, but in the former Soviet
Union this figure jumped to over 60 %.
• In Kazakhstan typical bribe to win approval of a
large construction contract is 15 to 20% of
contract price.
Political Corruption/Bribery
• In Mexico, suspicions surround the ability of Raul
Salinas, the brother of former President Carlos
Salinas, to amass a fortune of over $ 120 million
while a public official.
• Two former presidents of South Korea were
convicted of developing a fund of over $900
million while they were in office in the 1980s and
1990s.
• According to Transparency International, in 6 out
of 10 countries, political parties were determined
to be their nation’s most corrupt institutions.
Corruption/Bribery
• 1997 estimate by the World Bank
placed the total about of bribery
involved in international trade at
$ 80 billion per year.
• A recent World Bank survey of
3,600 firms in 69 countries found
that 40 % of businesses pay
bribes.
Corruption/Bribery - Least Corrupt

• According to a recent Transparency


International Report, Finland was
rated the world's cleanest business
environment, followed by New
Zealand, Denmark, Iceland,
Singapore, Sweden and Switzerland.
(Note Norway is somewhat farther
back on the list)
Corruption/Bribery - Least Corrupt

• What national characteristics might


explain this?
– Racial homogeneity? (But what
about Japan & Korea?)
– Geographic Isolation? (Iceland,
New Zealand, Singapore)
– Strict Rule of Law? (Singapore)
Corruption/Bribery
• What sets Norway
apart? Oil
Recent Statoil bribery
allegations, planned to
funnel a $15 million bribe
to an Iranian official in
exchange for help with
contracts
– Oil is considered
a significant
factor in Nigerian
& Angolan
corruption as well.
Corruption/Bribery
• Where do we stand?
– In the same study , the U.S. tied for 17th with
Belgium and Ireland.
– It was perceived as more corrupt than Norway,
Australia, the Netherlands, the U.K., Canada,
Austria, Luxembourg, Germany and Honk Kong,
but less corrupt than nations such as France,
Spain, Japan, Israel, Italy, & Mexico.
Corruption/Bribery
• Bribe - a payment of money, or something
of value, to a party, with the intent to
influence, or in exchange for special
consideration, that is incompatible with
the party’s duties of office, position or role
(“Coarse Bribery” that which affects a
significant community interest)
Corruption/Bribery
• Some examples of bribery
– Corporate purchasing agents are often given
"kickbacks" in order to make their purchases
from a specific supplier.
– Tour operators may receive special
unpublicized commissions or payment in kind
or services, in order to include certain airlines,
hotels, restaurants, and stores in their
itinerary.
Corruption/Bribery
• Civil servants in regulatory agencies,
usually badly paid relative to the economic
power they possess, may find it hard to
refuse payment in exchange for waiving
the regulations or to tailor specifications
and contracts, to suit special groups or
firms. (Note: In India most government
officials & their families could probably not
survive on their salaries alone.)
Corruption/Bribery
Corruption/Bribery
• Motivations: Firms, pressure groups and
citizens try to maximize their gains by
paying bribes, while public officials try to
maximize their illegal earnings and
politicians their power and wealth.
Corruption/Bribery
• Facilitating Payment - customary, local,
incentive/”grease” payments or “sweeteners”
intended to expedite performance. Usually made
to low-level public officials to “speed things
along”. Typically involves issuing licenses or
permits, clearing goods through customs, etc. (In
Italy, called bustarella. In Mexico, la mordida, “the
bite”. In South Africa, “dash”. In the Middle/Near
East, baaksheesh. In Germany, schimengeld. In
France, douceur. (Ukraine adoption example)
Corruption/Bribery
• The CEO of Unilever, the food and hygiene giant, insists Unilever does
not pay bribes but it does pay "facilitating payments". "There are
customary local things," he said. But they are only used where local
custom and practice dictate in the 90+ countries in which Unilever
operates. The idea is akin to tipping a waiter to get a better table, he
said. He insisted that an overall code of conduct governs these
matters, and bans the use of payments for unfair advantage although
trusted local managers have leeway to interpret the rules according
to local habits.
Corruption/Bribery
• How do you distinguish between a bribe and a
mere gift?
– Its not always clear
– Secrecy is a defining characteristic of
bribery/corruption.
– Gifts are generally made openly and often declared
– Bribes are often made using a middleman
– Gifts are usually given directly
– Bribes are usually of significant value
– Gifts are typically of minimal value
Corruption/Bribery
• How do you distinguish between a bribe and a
mere gift?
– Consider the social situation and context
– Consider perceptions of donor and recipient
important
– Consider whether or not a quid pro quo is
understood to be expected
Gift or Bribe?
• Ashbourn Corp., is soliciting bids for a 5 year contract for
the cleaning of their U.S. facilities, worth $22 million per
yr. Pete Stevens, the Sales Manager of Perfect Cleaning
Co. is, by coincidence, a former employee of Ashbourn
Corp.& an old college buddy of John Joyce, Ashbourn
Corp.’s Purchasing Director. Pete was confident he could
win this contract, after all his company already had a
good relationship with Ashbourn Corp. James Parkin, the
CEO of Perfect Cleaning Co. & Edgar White, the CEO of
Ashbourn Corp. were both Masons and Parkin had
sponsored White for membership to an exclusive country
club a couple of years earlier.
Gift or Bribe?
• Pete phoned John Joyce to find out more about the bidding
process. They also talked about old times and how they
used to enjoy skiing holidays together "Isn't it about time
we went back to Reno" asked Pete, "How about booking a
long weekend? I've got plenty of spare Air Miles that you
can use?”
• John Joyce was cautious about this suggestion. After all,
they are in the middle of a bidding process. But he
mentions it to his wife who is really keen about the idea of
getting back onto the slopes. "We will have a rule, no
mention of work" She says. They book to go on holiday
with Peter and his wife in February.
Gift or Bribe?
• Christmas is fast approaching. John Joyce, sends Pete
Stephens a Christmas card. His company has a policy of
not sending gifts. John’s wife receives a package by
courier on the 23rd of December from Pete and his wife
addressed to the Joyce family. It is an elegant mantel
clock.
• In February, the two couples enjoy a relaxing skiing
holiday together. Not a word is spoken about business.
Pete even wins $10,000 at the casino after taking some
tips from John on winning at Black Jack. Pete buys John a
champagne dinner to celebrate.
Gift of Bribe?
• In March the bids are considered, with John Joyce as
Chairman of the Selection Committee. The bids are almost
identical. None of the companies really stand out on price,
quality of service, etc.
• John tells his CEO that he hesitates to recommend Perfect
Cleaning Co. because of his rejuvenated friendship with
Pete. However, his CEO tells him, ”Don’t worry about that. I
trust you to look after our shareholders' interests - you tell
me who you think is best for the job".
• Perfect Cleaning Co. is awarded the contract. A week later
a letter arrives marked "Private & Confidential". John Joyce
opens it and a check for $5,000 falls out. A simple note is
attached "Thanks for your tip at the Casino you deserve a
share of my winnings! Pete.”
Corruption/Bribery
• Bribery commonly occurs in:
– Large investment projects
– Government Purchasing
– Extra-Budgetary Activities (“Special Projects”)
Corruption/Bribery
• Reasons/Excuses for Participation in
Bribery
– Competitive necessity
– Respect for local cultural norms
– Extortion
– Inability or unwillingness to control rogue
employees/delegation of power
Problems with Corruption/Bribery
– Distorts otherwise sound, reasoned judgment
– Creates partiality
– Often shifts government spending away from vital functions such
as education and public health, and into projects where public
officials can more easily extract bribes. (e.g. “White Elephant
Projects”, “Pork Barrel Spending”, “The Big Dig”, etc.)
– Disincentive to invest (Less security, lower return)
– Bribery adds to the cost of goods, fueling inflation.
– Inhibits fair and efficient markets, e.g. bribes are sometimes paid
in order to keep a competitor out of the market, by preventing it
from receiving a license or winning a bid. When companies
choose to rely on bribe payments to secure market position, they
are less concerned about increasing operating efficiency, or
developing new products, services and technologies.
Problems with Corruption/Bribery
– Can lower the quality of public goods and services and
even threaten safety (e.g. Turkish apartments that
collapse, African bridges without connecting roads)
– Undermines public confidence in democracy - e.g. in
places like Argentina, Panama, Honduras, Guatemala,
Nicaragua, Venezuela, Bolivia, Ecuador and Haiti.
– Opting to pay bribes damages company reputations
and makes it difficult to say no later (the reverse of this
is also true!)
Corruption/Bribery .
• Governments are starting recognize and
respond to the damage caused by
bribery/corruption
• Why?
– Lost revenues (taxes, duties, etc.)
Corruption/Bribery .
• Globalization: The “borderless” global
marketplace is bringing national
economies and corporations throughout
the world into increasingly greater
interdependence.
• High profile cases (e.g. Lockheed/Japan,
involved major companies as well as
political figures and staggering sums of
money. Paid $12.5 million in bribes for $430
million sales contract.)
Corruption/Bribery .
• U.S. Foreign Corrupt Practices Act of 1997
– Prohibits payments to a foreign official for the purpose
of influencing
• any act or decision
• or the omission of an act
• in violation of the law of that country
• to obtain or retain business
– Implies intent
– Only liable for actions of 3rd party agents when have
reason to know of
– Does not prohibit facilitating payments
– (Note that the Justice Dept. only brings on average 1.5
cases per year- “Special Report: Bribery and Business,
Economist, March 2, 2002, p.64)
Corruption/Bribery .
• At first, the rest of the world looked at it as a
sad case of an American moralism or
moralistic imperialism
– If other nations not follow suit does this = a
competitive disadvantage for U.S.?
Corruption/Bribery .
• 1996 Interamerican Treaty Against
Corruption
• 1997 OECD treaty committing 34 countries
to similar restrictions, in effect beginning
in 1999.
Corruption/Bribery .
• Other important anti-bribery initiatives
have recently been launched by the World
Bank, the International Monetary Fund, the
European Union, the Council of Europe, the
Organization of American States, the Pacific
Basin Economic Council, the Global
Coalition for Africa and the United Nations.
Corruption/Bribery .

• Ghana, Mozambique, Zambia & South Africa


have also launched anti-corruption drives..
Corruption/Bribery .
• In addition, recent steps by President
Vladimir Putin to introduce tax reforms and
new laws fighting money-laundering in
Russia
• But still high levels of bribery by firms from
Russia, China, Taiwan and South Korea,
Italy, Hong Kong, Malaysia, Japan, USA and
France.
Corruption/Bribery .
• Not much being done to address the
“demand” side of bribery (i.e. extortion)
• RICO (Anti-Racketeering) Statutes in U.S.
Corruption/Bribery .
• Reputation Management (Coca-Cola)
– Coca-Cola is operational in many developing
countries, is doing well, is beating competitors,
and is not paying bribes. The company is
thoughtful and painstaking about how it enters
new markets, how it selects local business
partners, and how it conducts itself in foreign
countries.
Corruption/Bribery .
• Integrity is key to its approaches.
– Coca-Cola makes maximum effort to be
transparent in its dealings, to win public
support, and to develop the kind of strength --
from its consumers and the public at large --
that make top officials uneasy about seeking
bribes from the beverage giant.
Corruption/Bribery .
• The reality is that to maximize
opportunities in the growing markets of
developing countries, corporations must
strive to be seen as honest, long-term,
committed guests. Corporations must
impress upon host governments,
customers, suppliers, and the general
public that they seek fair, open, long-term
relationships.
Corruption/Bribery .
• Coca-Cola trains its staff to learn about the
traditions, politics, and values of the
people in all of the countries in which it
operates. It gives key responsibilities to
nationals of these countries and ensures
that its image is never that of a ruthless
multinational colonialist corporation.
Corruption/Bribery .
• Coca-Cola plays an active role in most of
the countries in which it works, supporting
education and the arts and social services
in a long-term and genuine way.
• GE & Texaco also have developed a
reputation of refusing to pay bribes.
Corruption/Bribery
Caux Roundtable Anti-Corruption Principles
• 1. Disclose publicly and make widely known its
endorsement of the Anti-Corruption Measures.
• 2. Establish a clearly articulated written policy prohibiting
any of the firm’s employees from paying or receiving
bribes and “kickbacks.”
• 3. Implement the policy with due care and take
appropriate disciplinary action against any employee
discovered to have made payments in violation of the
policy.
• 4. Provide training for employees to carry out the policy,
and provide continuing support, such as help lines, to
assist employees to act in compliance with the firm’s
policy.
Corruption/Bribery
Caux Roundtable Anti-Corruption Principles
• 5. Record all transactions fully and fairly, in accordance
with clearly stated record-keeping procedures and
accounting controls, and conduct internal audits to assure
that all payments made are proper.
• 6. Report annually on the firm’s bribery and corruption
policy, along with a description of the firm’s experiences
implementing and enforcing the policy.
• 7. Have the annual report in step six above audited either
by an independent financial auditor or an independent
social auditor, or both.
• 8. Require all agents of the firm to affirm that they have
neither made nor will make any improper payments in any
business venture or contract to which the firm is a party.
Corruption/Bribery
Caux Roundtable Anti-Corruption Principles
• 9. Require all suppliers of the firm to affirm that they have neither
made nor will make any improper payments in any business venture
or contract to which the firm is a party.
• 10. Establish a monitoring and auditing system to detect any improper
payments made by the firm’s employees and agents.
• 11. Report publicly any solicitations for payments whenever such
reporting will not lead to harsh reprisals of material consequences to
the company or its employees (or report privately to a monitoring
organization, such as Transparency International or a social auditor).
• 12. Establish a system to allow any employee or agent of the firm to
report any improper payment without fear of retribution for their
disclosures.
Whistleblowing
• Does an employee have a duty of loyalty to
the firm? (TAKING SIDES)
– Company view: An employee has an obligation,
when acting on behalf of the organization, to
promote their employer’s interest
– Modified view: Only to extent each has a
common interest (Duska)
Some Crimes Affecting Business
• Robbery- aggravated
• Burglary- aggravated
• Larceny
– Grand
– Petit/Petty
• False Pretenses
• Receiving Stolen Goods
• Arson
• Forgery
• Bribery
• Insider Trading
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.
Some Crimes Affecting Business
The crime of larceny was first identified some
600 years ago and was initially narrowly
interpreted. However, it was also typically
punishable by death! Under common law, larceny
is the trespassory taking and asportation of the
tangible personal property of another with the
intent to deprive him or her of it permanently.
Trespa ss limits the crime to acts which involve
a violation of the right of possession--that is,
lawful possession prior to the act negates
trespass. Note that “taking” requires control, if
only for a brief period of time.
Some Crimes Affecting Business
In regard to larceny, intent requires that one intended to
deprive the possessor "permanently" of the property.
Although the mens rea of larceny is the intent to steal, the
focus is on the loss to the possessor, not the gain to the
defendant. Thus, even if the thief did not gain in the
taking, if the possessor lost in the process. Courts have
also held that permanence can be more than keeping
forever. Permanence can include the intent to deprive the
possessor of economic significance, even if he plans on
returning it later. It can also include taking and exposing
the property to a risk of permanent loss, like driving a
vehicle at very high speed.
Some Crimes Affecting Business
Larceny by Trick or Deception
occurs when the victim of larceny
is tricked by a misrepresentation of
fact into giving up possession of
property. This should not be
confused with false pretenses,
where the victim is tricked into
giving up title to the property.
Some Crimes Affecting Business
Grand larceny is typically defined as larceny
of a significant amount of property. In the
U.S., it is often defined as an amount valued
at $200 or more (though in some jurisdictions
the amount is as low as $100, and in others,
such as South Carolina, as high as $2000).
Grand larceny is often classified as a felony
with the concomitant possibility of a harsher
sentence. A theft involving a lesser amount is
generally classified as petty larceny, which
is usually a misdemeanor.
Some Crimes Affecting Business
Robbery is the crime of seizing property
through violence or intimidation. A
perpetrator of a robbery is a robber.
Because violence is an ingredient of most
robberies, they sometimes result in the harm
or murder of their victims. The precise
definition of robbery varies between
jurisdictions. The main elements of robbery
are a trespassory taking and asportation of
personal property from another’s person or
presence using either force or threat with the
intent to steal the property.
Robbery
A robbery can only occur where there has
been a theft but the person suffering the
theft need not be the person who is
threatened or assaulted. A robbery would be
committed where a robber attempts to steal
from a jewelry store but threatens a
customer not the jeweler in order to commit
the theft. By the same token the threats
must be live. For example, if a person was
threatened with being assaulted the
following day it is likely that no offence of
robbery would be committed.
Robbery
The elements of threat or force, and the
taking from the person or presence, are
what primarily differentiates robbery from
larceny and other types of theft. Note that
North Carolina eliminates the “taking”
requirement. Therefore, a robbery occurs
when the defendant merely attempts to take
property by threat or force. Most
jurisdictions require that the threat be
immediate. If there is a threat of future harm
the perpetrator may be charged with
extortion.
Robbery
Some Types of Robbery
Piracy is a type of robbery, generally
performed at sea. Armed robbery
involves the use of a weapon. In North
Carolina, aggravated robbery occurs
when a “deadly weapon” is used.
Highway robbery takes place outside
and in a public place. Car-jacking is
the act of stealing a car from a victim,
usually at gunpoint.
Robbery
Robbery is different from
embezzlement in that
robbery is considered to be
more “violative of the
person” embezzlement is
considered to be more
“violative of a trust
relationship”.
Embezzlement
The elements of
embezzlement are:
–a. Keeping (converting)
property lawfully obtained

–b. “Converting” substitutes


for “taking” in larceny
Extortion
Elements

a. Actus reus: taking someone


else’s property by threat of a
variety of future harms

b. Mens rea: intent to take


someone else’s property by
threat of future harm
Burglary
Originated as a crime of
nighttime invasion of homes
(regarded as deserving
special protection, especially
at night), but later grew to
include invasions of all kinds
of buildings and vessels at
any time of day or night.
Burglary
Common Law Elements:
(a) breaking (a forcible entry
concept)
(b) and entering
(c) the dwelling (or
structure) of another
(d) with intent to commit a
felony therein
(e) by the defendant.
Burglary
Is the defendant guilty of burglary if:

(a). He opened the victim’s door, entered his house


and took a stereo he’d seen through the window?
(b). Same facts as above, but defendant walked
through an open door?
(c). Same facts as (a), but defendant entered by
pushing already open door three inches further
open?
(d). If the defendant broke down the victim’s door,
and entered her home with the intent of raping her?
(e). If the defendant had a trained monkey open the
victim’s window, enter and steal the stereo?.
Burglary
Is the defendant guilty of burglary if: (answers)
(a). Yes. All the required elements are present.
(b). No, no “breaking” present; defendant is liable
for larceny (theft)
(c). Yes, any use of force to move the door,
however slight, is enough for breaking.
(d). Yes. Rape is a felony and all other elements of
burglary are present.
(e). Yes. The monkey is an “agent of the
defendant’s will” and all the elements are present.
(Note: In many cases a child used by an adult to
commit a crime may also be considered this.)
Burglary
Degree (grading) depends on:
(a) What type of dwelling;
(b) Whether a weapon was used;
(c) Whether the dwelling was
occupied;
(d) Whether the occupant was
assaulted;
(e) Whether a crime was intended
once inside.
Burglary
Burglary of a vehicle
occurs at the moment entry
is made with the intent to
steal, regardless of whether
the intent is to take the
vehicle itself or some
object inside the vehicle.
Burglary
For Burglary of a Vehicle to occur:

1) the Vehicle must be locked or …


2) some “force” used… for example...
Pushing open the broken wing-
window of an otherwise locked
vehicle will suffice.
However, simply unhooking,
unlatching, or loosening something in
order to enter will not.
Criminal Trespass
Essence of the offense—unwanted presence

Elements

a. Actus reus—unauthorized entering or remaining in


someone else’s premises (definition of premises differs from
state to state)
b. Mens rea varies:
(1) Knowledge of lack of authority (most states)
(2) Specific intent to enter or remain to commit a crime
without authority
(3) Strict liability

Degrees (grading) depends on:

a. Whether the trespass was of a home at night—


misdemeanor
b. Whether the dwelling was an occupied structure—petty
misdemeanor
c. Whether there was a “no trespass” notice—violation
Forgery
Elements

(1) Actus reus: making a false


document

(2) Mens rea: intent to get someone


else’s property

“Document” is expanded in some statutes


to anything that can be falsified.
Forgery
In North Carolina, the crime of forgery
requires allegations of 3 elements:
“(1) There must be a false making or
alteration of some instrument in
writing; (2) there must be a fraudulent
intent; and (3) the instrument must be
apparently capable of effecting a
fraud.” State v. Phillips, 256 N.C. 445,
447, 124 S.E.2d 146, 147 (1962).
Uttering
Elements

(1) Actus reus: passing or using a


forged document

(2) Mens rea: intent to defraud (get


other people’s property) by passing or
using the forgery

Utterer doesn’t have to alter the document.


Receiving Stolen Property
It is a crime not only to take someone
else’s property but also to “receive”
(accept) property already stolen.

Actus reus: receiving means controlling


(not necessarily physically) property

Mens rea varies from knowingly to


recklessly to negligently, depending on the
state. Mens rea also includes the intent to
keep the property permanently
Defrauding and Innkeeper
What about not paying for a meal?

CA PC §537. (a) Any person who obtains


any food, fuel, services, or
accommodations at a hotel, inn,
restaurant,...etc. , absconds, or
surreptitiously, or by force, menace, or
threats, removes any part of his or her
baggage therefrom with the intent not to
pay for his or her food or accommodations
is guilty of a public offense
Cyber-Theft
What are some types of
cyber-theft?
Theft of Trade Secrets
Theft of Personnel Records
Theft of Customer Lists
Identity Theft
Hacking
Cyber-Theft
Cyber theft is accessing a computer
online, without authority, to obtain
classified, restricted, or protected
data, or attempting to do so. This
includes financial crimes, such as
transferring funds via computer
without authorization, and identity
theft, which occurs when a form of
identification is stolen and used
illegitimately.
Cyber-Theft
What is identity theft?
Taking someone else’s property by first
stealing their identity. The key to identity
theft is getting a victim’s personal
information (e.g. social security number,
mother’s maiden name, etc.). This can be
obtained from family members, friends,
neighbors, discarded mail. It is typically
utilized to make purchases with credit
cards, obtain utility services, access bank
accounts, etc.
Cyber-Theft
Hacking (or Computer trespass) is the:

a. Unauthorized access by hackers to


computer information systems

b. No need to prove destruction or


damage

c. Invasion itself is the essence of the


crime.
Cyber Stalking
• Cyber stalking is
harassing a
person in
cyberspace (via
e-mail, for
example). It is
prohibited by all
states. Some
states require a
physical act.
Cyber Terrorism
Cyber terrorism is
exploiting computers for
serious impacts, such as
the exploding of an internal
data “bomb” to shut down a
central computer or
spreading a virus to cripple
a computer network.
Destruction of Property

Arson, and criminal


mischief are two typical
crimes involving damaging
and destroying other
people’s property.
Arson
Elements

1. Actus reus: burning” building


2. Mens rea: intent to commit the act of
burning or setting fire to a building (not necessary
to intend to damage or destroy the building)

Degrees
a. First degree—burning occupied
buildings
b. Second degree—burning unoccupied
structures
Criminal Mischief
Three kinds of harm to tangible property
a. Damage or destruction by fire, explosives, or
“dangerous acts”
b. Tampering so as to endanger tangible
property
c. Deception or threat that causes monetary
loss

Other elements
a. Actus reus: burning, exploding, or other
dangerous act or tampering or endangering by
deceit or threat
b. Mens rea: purposely, knowingly, recklessly,
or negligently doing any of the acts
False Imprisonment
The crime of false imprisonment is
similar to kidnapping with the
primary difference being the lack of
the actus reus of asportation. In
many jurisdictions, like NC, it is
treated as a lesser included offense
to kidnapping (see State v. Lang, 58
N.C. App. 117, 118, 293 S.E.2d 255,
256, disc. review denied, 306 N.C.
747, 295 S.E.2d 761 (1982).
False Imprisonment
The crime of false imprisonment (or false
arrest) is the unlawful detention of
another by force without consent. The
elements of this crime require:
1) the imprisonment of the person and,
2) that the imprisonment must be
unlawful.
A false imprisonment often results from
an unlawful show of force. The person is
confined within bounds so as to be
deprived of liberty of movement.
False Imprisonment
Generally, false
imprisonment is considered
a misdemeanor unless it
involves violence, menace,
fraud or deceit, in which
case it may be a felony.
False Imprisonment
Taking hostages during false
imprisonment
– 1. to protect the perpetrator from
arrest (which substantially increases
the risk of harm to the victim), or
– 2. for purpose of using the victim as
a “human shield" =
will often result in an enhanced felony
sentence.
Inchoate Offenses
An inchoate act/offense is a crime relating to the act
of preparing for or seeking to commit another crime. A
true inchoate offense occurs only when the intended
crime is not perpetrated. Absent a specific law, an
inchoate offense requires that the defendant have the
specific intent to commit the underlying crime. For
example, for a defendant to be guilty of the inchoate
crime of solicitation of murder, she must specifically
intend to cause the death of a particular human being.
It would not be enough for defendant to ask another to
kill the victim when she simply intended to scare the
victim. (Note that specific intent can be inferred, and
many people would infer the specific intent to kill the
victim simply by defendant asking another to do it).
Inchoate Offenses
Examples of inchoate offenses include:

Attempt
Conspiracy
Solicitation
Aiding or abetting
Accessory
Attempt
In 360 B.C. Plato is attributed with stating that one who
“has a purpose and intention to slay another and only
wounds him should be regarded as a murderer.”
However, about 1300, English Nobleman Henry of
Bracton stated that “For what harm did the attempt
cause, since the injury took no effect.” (As they say in
common American parlance, “No harm, no foul.”)
Attempt was not a crime at early British common law.
However, by the 1400’s English judges began applying
the maxim “The will shall be taken for the deed” and
English criminal records show parties began be
criminally charged for attempt in England in the late
1500’s. In the 1600’s, Frances Bacon argued that “all
acts of preparation should be punished.” By the 1700’s,
English courts recognized a formal law of attempt. In
Rex v. Scofield (1784), a servant was charged for
attempting but failing to burn down his master’s house.
Attempt
The purpose of laws punishing attempts to commit a
crime is to discourage people from planning and
attempting to commit “dangerous conduct.”
The essence of the crime of attempt is that the
defendant has tried but failed to commit the actus reus
("guilty act") of the full offense, but has the direct and
specific intent to commit that full offense. The normal
rule for establishing criminal liability is to prove an actus
reus accompanied by the appropriate mens rea at the
relevant time.
Early common law required some actual injury. Most
modern criminal statutes do not.
Attempt
Whether the actus reus of an attempt has occurred is a question of
fact for the jury to decide. A charge of attempt requires more than
mere intent (see People v. Murray). Note that the common law used
to distinguish between acts that were “merely preparatory” and
those which were “sufficiently proximate”. When anyone is
planning and executing a plan, there will always be a series of
steps that have to be taken to arrive at the intended conclusion.
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
establish the routines, traveling to a store to buy necessary tools
and equipment, etc. But the closer to the reality of committing the
offense the potential wrongdoer moves, the greater the social
danger he or she becomes. Since the potential wrongdoer could
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 intention is going to be realized.
Attempt
In English law, the test of proximity was that the
defendant must have "...crossed the rubicon, burnt his
boats, or reached a point of no return". (D.P.P. v.
Stonehouse [1977] 2 All ER 909 per Lord Diplock.)
Another test is whether the defendant has “reached that
part of the series of acts, which if not interrupted or
frustrated or abandoned, would inevitably result in the
commission of the intended offence” (Stephen's Digest
of the Criminal Law).

Former U.S. Supreme Court Justice Oliver Wendell


Holmes said “acts should be judged by their tendency”,
but that there “must be a dangerous proximity to
success.”
Attempt
The “res ipsa loquitor test”, also called the “unequivocality test”) looks to
see if, at a certain point in time, the defendant had “no other purpose than the
commission of a specific crime.”

The “probable desistance test” focuses on whether the defendant would


have followed through with the crime had the opportunity existed.

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

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

Most jurisdictions have specific attempt statutes related to specific crimes,


such as attempted murder, or attempted robbery.
Attempt
Defenses to a charge of attempt may include,
voluntary abandonment, legal impossibility or
actual impossibility. Legal impossibility involves the
situation where the defendant believes their intended
act was illegal but it in fact was not. (Reminds me of
the Sponge Bob Square Pants episode when Sponge
Bob and Patrick “steal” a balloon on free balloon day!
Hey, give me a break, I have young kids.)
Another example of this is a case from Wisconsin
where the defendant tried to receive a stolen Harley-
Davidson Motorcycle which it turned out was not
actually stolen (State v. Kordas, N.W.2d 483 (Wis.
1995).
Note that both American and English law, criminal
attempt usually applies even though the facts are such
that the commission of the offense is actually
impossible, so long as the defendant believes that he
is about to break the law and intends to commit the
relevant full offense. (State v. Haines)
Conspiracy
As a legal term, a conspiracy is an
agreement of two or more people to
commit a crime. The agreement is the
actus reus and the intent to both agree
and act constitute the mens rea. In
some jurisdictions, the agreement
alone is sufficient to bring a charge of
conspiracy. Other jurisdictions require
“substantial steps” or “overt acts”.
Conspiracy
In Hyde v. U.S., (1912), Justice Holmes
stated that “if an overt act is required, it
does not matter how remote the act may be
from accomplishing the purpose, if done to
effect it.” As to the parties to a conspiracy,
most modern criminal statutes apply a
unilateral approach whereby all
conspirators need not necessarily be in
agreement with all others or even be aware
of the other conspirators, and failure to
convict one party to an alleged conspiracy
does not prevent others from being
convicted.
Conspiracy
In “wheel conspiracies”, one of more
defendants participate in every
transaction, as the “hub” of the
conspiracy.
In “chain conspiracies”, participants
at one end of the chain may no
nothing of conspirators at the other
end of the chain. Drug smuggling
conspiracies are often of this type.
Conspiracy
Defenses: Mistake of law or fact
are often acceptable defenses to a
charge of conspiracy. Withdrawal
however is usually not a defense,
since the crime of conspiracy is
considered to be complete when
the parties first enter into an
agreement.
Conspiracy
UNITED STATES OF AMERICA v. HUGHES AIRCRAFT CO. INC.
20 F.3d 974 (9th Cir. 1994)

• 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
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
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
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.

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

• DECISION: Yes.

• REASONS:

• 1. The conviction of one co-conspirator is valid even when the alleged co-conspirators are
acquitted.
• 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
government.
• 4. Since LaRue’s supervisors failed to act after receiving information about LaRue’s
wrongdoing.
Solicitation
Solicitation consists of a person inciting, counseling,
advising, urging, or commanding another to commit a
crime with the specific intent that the person solicited
commit the crime. It is not necessary that the person
actually commit the crime, nor is it necessary that the
person solicited be willing or able to commit the crime
(such as if the "solicitee" were an undercover police
officer).

For example, if A commands B to assault C and A


intends for B to assault C, then A is guilty of solicitation.

Note that solicitation can apply to just about any criminal


act. Examples might be solicitation of murder,
solicitation of prostitution, or solicitation of a bribe.
Aiding And Abetting
Abetting (from the Old French to bait or urge dogs
upon someone) involves instigating or assisting in
the commission of an offence. An abettor differs
from an accessory in that he must be present at the
commission of the crime; all abettors (with certain
exceptions) are principals, and, in the absence of
specific statutory provision to the contrary, are
punishable to the same extent as the actual
perpetrator of the offence. A person may in certain
cases be convicted as an abettor in the commission
of an offence in which he or she could not be a
principal, e.g. a woman or boy under fourteen years
of age in aiding rape. More recently, an abbetor is
generally known as an accomplice.
Accessory
Anyone who aids, counsels, encourages or assists in the
preparation for a crime, but who is not actually present in
the commission of the crime, may be an “accessory
before the fact”. At common law an accessory before the
fact could not be convicted unless and until a principal
was convicted. However, many modern-day criminal law
statutes have removed this requirement. An accessory
before the fact is often punished at the same level as a
principal.

Any person who gives aid, comfort or shelter to a


criminal with the purpose of assisting same in avoiding
arrest after a the crime has been committed, but who was
not present during the crime, may be an “accessory after
the fact”. Accessories after the fact are usually punished
at a lesser level than principals.
Fraud
• Elements:
– Intention To Mislead
– Misstatement Of Fact securities
– Justifiable Reliance
– Injury Health Mail &
Care Wire

• Types
– Securities Fraud
– Health Care Fraud
– Mail & Wire Fraud
FRAUD
Mail And Wire Fraud
• Interstate Communication
• Scheme To Defraud- Course Of Action To
Deceive Others
• Legal Aspects- Statement (Material Fact)
Known To Be Untrue Or Disregards Truth
– Intent To Defraud- Act Knowingly
– Good Faith
Mail And Wire Fraud SCHMUCK v. UNITED STATES
109 S.Ct. 1443 (1989)

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
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
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
documents. The trial court resulted in a conviction. The appellate court affirmed the
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
fraud?

DECISION: Yes.

REASONS:
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
completion of the fraudulent transaction.
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
Bankruptcy Crimes
• Falsify Information

• False Claim

• Concealment of Assets
Money Laundering
Under federal law, financial
institutions must report
currency transactions of over
$10,000. To avoid detection
under this law, those who
engage in illegal activi-ties
may attempt to launder the
money through legitimate
businesses.
Racketeer Influenced &
Corrupt Organizations Act(1970)
(RICO)
• Liability for “Money-laundering”
– Use/Invest Income From Prohibited Activities
– To Acquire/Maintain Interest In Prohibited
Enterprise
– Conducts/Participates/Conspires In Prohibited
Enterprise
• Prohibited Activity
– Pattern Of Racketeering
– Collection Of Unlawful Debt
• Allows for Seizure of Assets
• Allows for Treble Damages
Racketeer Influenced &
Corrupt Organizations Act(1970) (RICO)
H.J. INC. v. NORTHWESTERN BELL TELEPHONE COMPANY
109 S.Ct. 2893 (1989)

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
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
this suit since it concluded there was no pattern of wrongdoing. The appellate court affirmed.
H.J. Inc. received certiorari from the Supreme Court.

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

DECISION: No.

REASONS:

1. A pattern is found in establishing a relationship among the illegal acts (predicates) and the
threat of continuing illegal activity.
2. The evidence presented in this case shows numerous bribes being paid over a 6-year
period.
3. These multiple examples of predicates and the likelihood the bribes would continue satisfy
the requirements of a RICO claim.
Racketeer Influenced &
Corrupt Organizations Act(1970) (RICO

• Cedric Kushner Promotions, Ltd. v. Don King


– The Supreme Court held that fight promoter Don King, a natural
person, is a legally different entity from Don King Productions,
and therefore could be sued under RICO even though King was
the only shareholder and president of Don King Productions.
– Note that this is a civil RICO suit.
– Kushner argued that King’s illegal activities resulted in the
cancellation of Kushner’s scheduled fights. King also argued that
he could not be sued under the statute because he was an
employee acting within the scope of his employment. While the
Second Circuit accepted this argument, the Supreme Court
rejected it because it would immunize from RICO liability many of
those at whom the statute directly aims—high ranking individuals
in an illegitimate criminal enterprise who, seeking to further the
purpose of that enterprise, act within the scope of their authority.
Racketeer Influenced &
Corrupt Organizations Act(1970) (RICO

• The Supreme Court has long expressed a wish for Congress


to rein in RICO, some recent cases show a willingness to
begin to do what Congress has refused to do. The Justice
Department has voluntarily reigned in its use of RICO in
certain instances by limiting the seizure of assets of RICO
defendants and limiting its use in cases where the defendant
is charged with filing false tax returns. Note that over half the
states have adopted ‘baby RICO’ statutes, so companies
could face liability in multiple jurisdictions.
• The ability to recover treble damages has led to the use of
RICO in a wide variety of suits from employment cases, to
abortion picketing, to securities sales. Jim and Tammy
Bakker were sued under civil RICO.
Corporate Criminal Liability
The Common Law rule is that corporations can be
held criminally liable for the actions of its agents and
officers.

Aggregation Test: In United States v. Bank of New


England, 821 F2d 844(1987), the charge of willfully
failing to file reports relating to currency transactions
was proved because the bank’s knowledge was the
totality of what all of the employees knew within the
scope of their authority. The Court of Appeals’
confirmed a collective knowledge is appropriate
because corporations would compartmentalize
knowledge and subdivide duties and avoid liability.
Corporate Criminal Liability
Responsible Relationship Test:
Corporate employees who have a
responsible share in the furtherance of
the transaction which a statute
outlaws are subject to the criminal
provisions of the Act. See United
States v. Park, 421 U.S. 658 (1975);
Morissette v. United States, 342 U.S.
246 (1952); United States v.
Dotterweich, 320 U.S. 277, (1943).
Corporate Criminal Liability

• A corporation is a legal “person.”


• A corporation can be fined or denied
legal privileges (license) for criminal
activity.
• Responsible Corporate Officer:
officers and directors can be also be
held criminally liable.
Should “Victimless Crimes” Be
Decriminalized?

• e.g. Prostitution, Marijuana, Sodomy,


etc.
– Difficult to enforce
– Facilitate corruption
– Overburden the courts and police
– Foster disrespect for the law