CRIMINAL LAW AND PROCEDURE
I.
The Role of Criminal Law
A. Nature of Crimes
1. Public wrongs
2. Acts prohibited by6 the state or federal government
3. Classified as
a. Felonies: serious crimes punishable by a lengthy
confinement as well as a fine
b. Misdemeanors: lesser offenses punishable by lesser fines
and confinement
c. Infractions: quasi-criminal acts usually only punishable by
fines
B. Purpose of Criminal Sanction
1. Deterrence: discourages the commission of crimes
2. Rehabilitation: changing the attitudes or values of a criminal so
that he or she is not inclined to commit additional offenses
3. Incapacitation: incarceration, which impedes the ability to
commit crimes
4. Retribution: punishment of offenders
C. Essentials of Crime
1. Constitutional Limitations on Power to Criminalize Behavior:
a. Legislatures have limited power to criminalize behavior
that impacts the following rights protected by the U.S.
Constitution
b. Limitations include
i.
No Ex post facto criminal laws: criminal laws
cannot be applied retroactively, I.e., the defendant’s
actions must have been prohibited at the time he
committed them
ii.
Right of privacy: if behavior is consitutionally
protected, it cannot be criminalized
a) In Griswold v. Connecticut, the Supreme
court held that states cannot prohibit the use
of contraceptive devices and the counseling
of others in use of the devices
b) In Roe v. Wade, the Supreme Court limited
the states’ power the criminalize abortion
iii.
Freedom of speech
II.
a) The First Amendment to the U.S.
Constitution fully protects noncommercial
speech; however, commercial speech
receives only intermediate protection
b) Obscene speech, defined by the Miller test,
does not receive any protection
c) The government has limited ability to
regulate indecent speech in order to protect
minors
iv.
Due process
a) The Fifth and Fourteenth Amendments to
the United States Consitution prohibit vague
criminal statutes
b) Prohibited behavior must be defined
specifically enough so that the public
receives fair notice
v.
Equal protection
a) Law must treat similarly situated persons
alike
b) Criminal statutes cannot arbitrarily
discriminate against difference classes of
persons
vi.
No cruel and unusual punishment: the Eighth
Amendment to the U.S. Constitution forbids
punishments that are disproportionate to the crimes
2. Proof beyond a Reasonable Doubt
a. Defendants in criminal cases are presumed innocent until
proven guilty
b. To overcome the presumption of innocence, governments
must prove every element of a crime beyond a reasonable
doubt
3. Defendant’s Criminal Intent and Capacity
a. Most serious crimes require mens rea (or criminal intent) as
an element
b. Variations of intent include:
i.
Intentional wrongdoing
ii.
Recklessness: conscious disregard of a
substantial risk that harm will result
iii.
Negligence: failure to perceive a substantial risk
that a reasonable person would have perceived
c. To prove intent, prosecutors traditionally must show that
the defendant had the capacity to form the required intent;
types of incapacity include intoxication, infancy (youth),
and insanity
Criminal Procedure
A. Overview of Criminal Prosecutions
1. Booking: recording the suspect’s arrest
2. Complaint
a. Identifies the accused and details the charges
b. Prepared by the prosecutor after deciding to prosecute
3. Initial appearance: a magistrate informs the accused of the charges
and outlines the constitutional rights
4. Preliminary hearing: in felony cases many states require the
prosecutor to introduce sufficient evidence to a magistrate to
demonstrate probable cause
5. Formal charge
a. Indictment: in some states, a grand jury approves the
decision to prosecute a person for a felony
b. Information: in the other states, the prosecutor signs the
formal charge, outlining the facts supporting it
c. ***Misdemeanor cases are prosecuted by information in
virtually all states***
6. Arraignment: the defendant enters a plea of guilty, not guilty or
nolo contendere (no contest)
B. Role of Constitutional Safeguards: the Bill of Rights (first ten
Amendments to the U.S. Constitution) set forth the rights of criminal
defendants, with the Fourth, Fifth and Sixth Amendments playing a
primary role
C. The Fourth Amendment: protects persons against unreasonable searches
and seizures
1. Reasonable Expectation of Privacy
a. Extends to areas where individuals have a reasonable
expectation of privacy, such as private dwellings and the
immediately surrounding area, telephone booths, sealed
containers, and first-class mail (see e.g., Kyllo v. U.S.,
holding that use of thermal imaging devices to scan a home
for marijuana heat lamps constitutes an impermissable
search)
b. Does not extend areas where persons have no reasonable
expectation of privacy, such as open fields, personal bank
records, and voluntary conversations between criminal
defendants and government informants (see e.g., United
State v. Hall, which held that a business had no reasonable
expectation of privacy to a bag of shredded documents
placed in a garbage dumpster located in a parking lot
shared by other companies)
2. Warrant Requirement and Exceptions
a. Generally, searches without a warrant are deemed be
unreasonable
b. Exceptions include:
i.
The area within an arrestee’s immediate control
ii.
Premises police enter while in hot pursuit of an
armed suspect
iii.
Contraband items in the plain view of officers
acting lawfully
iv.
Consensual searches
v.
Customs searches
vi.
Administrative inspections of closely regulated
businesses
3. Exclusionary Rule
a. Evidence seized in illegal searches cannot be used in court
against the accused whose constitutional rights were
violated
b. Exceptions
i.
The evidence would inevitably been obtained by
lawful means; or
ii.
Officers who acted under a search warrant later
held to be invalid reasonable believed that the
warrant was valid (also know as the “good faith”
exception)
4. USA PATRIOT Act
a. Enacted by the U.S. Congress almost six weeks after
September 11, 2001
b. Designed to protect the public against international and
domestic terrorism
c. Significantly expanded the federal government’s ability to
conduct searches of property, monitor Internet activities,
and track electronic communications in terrorism-related
cases
d. Portions of the statute will expire at the end of 2005
D. The Fifth Amendment (and Fourteenth Amendment as applied to states)
1. Contains the due process clause, guaranteeing basic procedural and
substantive fairness to criminal defendants
2. Protections include
a. Privilege against Self-Incrimination
i.
Prevents the government from coercing
testimony
ii.
Requires police to give suspects the Miranda
warnings before custodial interrogation, I.e.,
suspects must be informed of their right to remain
silent, that any statements made can or will be used
against them, and that they have the right to
presence and assistance of counsel (their own or
court-appointed)
iii.
If a suspect invokes their right to remain silent,
questioning must stop
iv.
III.
Does not apply to non-testimonial evidence,
such as fingerprints, hair samples or body fluids
b. Compelled production of private papers (cannot be asserted
by a corporation, partnership or other “collective entity”)
c. Double Jeopardy: prohibits multiple criminal prosecutions
for the same offense, but does not preclude
i.
A single criminal act leading to more than one
prosecution for separate offenses
ii.
Multiple prosecutions by different sovereigns
(I.e., a suit by a state government followed by a suit
by a federal government)
iii.
A private plaintiff from pursuing a civil action
(I.e., the OJ Simpson case)
E. The Sixth Amendment
1. Right to a speedy trial by an impartial jury
2. Right to confront and cross-examine witnesses
3. Right to have the assistance of counsel
a. If a defendant cannot afford an attorney, he or she will be
provided one at the state’s expense
b. Once an accused requests an attorney, generally he or she
cannot be questioned further
4. Right to effective assistance of counsel
White-Collar Crimes and the Dilemmas of Corporate Control
A. Introduction
1. White-collar crime: nonviolent criminal offenses committed by
businesspersons and business organizations
2. Includes consumer fraud, securities fraud, mail or wire fraud, tax
evasion, price-fixing, environmental pollution, and other
regulatory violations
B. Corporate Criminal Liability : a corporation may be held liable for
criminal offenses committed by employees who acted within the scope of
their employment and for the benefit of the corporation
C. Individual Liability for Corporate Crime: individuals who commit crimes
while acting in corporate capacities have always been subjected to
personal criminal liability
D. Important White-Collar Crimes
1. Bribery and Giving of Illegal Gratuities
2. Engaging in racketeering activity - RICO (Racketeer Influenced
and Corrupt Organizations Act)