Chapter
10
The Criminal Law
And Business
McGraw-Hill/Irwin
Copyright © 2005 by The McGraw-Hill Companies, Inc. All rights reserved.
Introduction
 Business Law Did Not
Consist Of Understanding Of
Criminal Law- Changed
 Reasons For Change Of
View:
• Arthur Andersen
• Enron
• MCI/WorldCom
10-2
Crime
 Wrong Against Society &
Prohibited Conduct
 Malum In Se
 White-Collar Crime
Committed By:
• Business Entities
• Officers
• Accountants
• Attorneys
• Desk Workers
10-3
California Crime Statistics
3,500
Crime Rate Per 100,000 Population
3,000
2,500
Violent Crime
Property Crime
Larceny-Theft
2,000
1,500
1,000
500
0
1993
1995
1997
Source: Office Of Attorney General, Dept. Of Justice, State Of California
1999
2001
10-4
Concepts
 Willfully
• Committed Voluntarily
• On Purpose
• Intent
 Pleas
• Guilty
• Not Guilty
• Nolo Contendere
10-5
Grand Jury
 Constitution- 5th Amendment
 23 Citizens Of Jurisdiction
 Probable Cause
 Presumption Of Innocence
 No Defense Counsel
 Subpoena Power
 Secret Proceedings
10-6
Fourth Amendment
To Constitution
 Illegal Search &
Seizure- Unreasonable
 Extends To Civil
Matters
 Assumes Expectation
Of Privacy
10-7
Criminal Procedure Protections
 4th- Protection against unreasonable searches & seizures
•
•
Exclusionary Rule: Illegally obtained evidence inadmissible (Recent Local Example)
Porn, theft charges likely to be dropped: Judge says search by police illegal
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, Raleigh News & Observer, 10/14/05.
10-8
Fifth Amendment
To Constitution
 Self-Incrimination
• Protects Accused From
Testifying Against Self
• Does Not Protect Against
Being Required To Produce
Evidence
• Business Records Can Be
Obtained
• Only Protects Sole
Proprietorship Entity
10-9
Fifth Amendment
To Constitution
 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.
10-10
Fifth Amendment
To Constitution

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?

10-11
Fifth Amendment
To Constitution
HUDSON v. UNITED STATES
118 S.Ct. 488 (1997)

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.
10-12
Criminal Procedure
Protections
 5th- Miranda
• Right to remain silent
• Anything said can/will be used against
you
• Right to consult with a lawyer, to have
lawyer present during interrogation
• Cannot afford lawyer, a lawyer will be
appointed (free of charge)
10-13
Sixth Amendment
To Constitution
 Provides Protections To:
• Speedy/Public Trial
• Trial By Jury
• Be Informed Of Charge
• Confront Accuser
• Subpoena Witnesses
• Assistance Of Attorney
10-14
Criminal Procedure
Protections
 8th- Protection against cruel
and unusual punishment
10-15
Specific
Business Crimes
 Worker Endangerment-
Occupational Safety &
Health Act
 Obstruction Of Justice (see
chart, p. 301)
 False Statement
• Bank
• Federal Agency
OSH
A
10-16
Some Crimes Affecting Business
 Robbery- aggravated
 Burglary- aggravated
 Larceny
• Grand
• Petit/Petty
 False Pretenses
 Receiving Stolen Goods
 Arson
 Forgery
10-17
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.
10-18
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. Trespass 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.
10-19
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.
10-20
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.
10-21
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.
10-22
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.
10-23
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).
10-24
Inchoate Offenses
Examples of inchoate offenses
include:
Attempt
Conspiracy
Solicitation
Aiding or abetting
Accessory
10-25
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.
10-26
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.
10-27
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.
10-28
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.”
10-29
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.
10-30
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)
10-31
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”.
10-32
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
10-33
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.
10-34
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.
10-35
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?
10-36
Conspiracy
UNITED STATES OF AMERICA v. HUGHES AIRCRAFT CO. INC.
20 F.3d 974 (9th Cir. 1994)
 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.
10-37
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.
10-38
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
10-39
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.
10-40
 Elements:
Fraud
• Intention To Mislead
• Misstatement Of Fact
• Justifiable Reliance
• Injury
 Securities Fraud
 Health Care Fraud
 Mail & Wire Fraud
FRAUD
10-41
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
10-42
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?

10-43
Mail And Wire Fraud
SCHMUCK v. UNITED STATES
109 S.Ct. 1443 (1989)




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
10-44
Bankruptcy Crimes
Falsify Information
False Claim
Concealment
10-45
Racketeer Influenced &
Corrupt Organizations Act(1970)
 Liability
• Use/Invest Income From Prohibited



Activities
• 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
10-46
Racketeer Influenced &
Corrupt Organizations Act(1970)
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?

10-47
Racketeer Influenced &
Corrupt Organizations Act(1970)
H.J. INC. v. NORTHWESTERN BELL TELEPHONE COMPANY
109 S.Ct. 2893 (1989)


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.
10-48
Cyber Crime
 Hacker (Cracker)- Unlawful
Access To Electronic
Information
 Electronic Theft
• Trade Secrets
• Personnel Records
• Customer Lists
10-49
Trends
 Sarbanes-Oxley Act
 Prosecution For Tax Evasion
 Plea Bargain With Mid-Level
Employees In Exchange For
Testimony Against Top-Level
Employees
 Seizure Of Assets
10-50
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)
10-51
U.S. Felony
Conviction Rates(2000)
Fraud
Assault
Motor Vehicle Theft
Weapons Offense
Burglary
Murder
Drug Trafficking
Driving Offense
0%
10%
20%
30%
40%
50%
60%
70%
Source: U.S. Dept. Of Justice, Office Of Justice Programs, Bureau Of Justice Statistics
10-52
Crime = Public Wrongs
 Misdemeanors
• Lesser Offenses (e.g. traffic
offenses, disorderly
conduct)
• Generally Punishable by
Fines or Short Confinement
10-53
Crime Classifications
Felony
Misdemeanor
Indictment
Grand Jury
Information
Gov’t Charge
Fine Or
Imprisonment
Fine Or
Jail<1 yr.
10-54
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)
10-55
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
10-56
Criminal Intent
10-57
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
10-58
Essentials of Crime
 4) Capacity
• M’Naghten standard (a person is not responsible if, at
the time of the offense, he did not know the nature and
quality of his act, or if he did know it, he did not know
that his act was wrong)
• Voluntary Intoxication
 Generally not a complete defense
 But may diminish the degree of the defendant’s
liability.
• Juvenile status
 At common law, children younger than 14 years old
could not form criminal intent.
 Most jurisdictions still have a special status for
juvenile defendants
 But repeat offenders, and those charged with very
serious offenses may be treated as adults.
10-59
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
10-60
Essentials of Crime
 The idea behind capacity
is that we want to punish
the willful wrongdoer: an
essentially moral idea.
 Is it right to execute
minors or mentally
retarded individuals who
have murdered others?
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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.
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Criminal Procedure







Arrest
Booking
Initial appearance
Preliminary hearing
to determine
probable cause
Indictment or
information
Arraignment
Trial
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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?
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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
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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
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Example of Proving Elements of a
Crime: Common Law Burglary
 (a) breaking (a forcible entry
concept)
 (b) and entering
 (c) the dwelling of another
 (d) with intent to commit a
felony therein
 (e) by the defendant
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Example of Proving Elements of a
Crime: Common Law 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?
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Example of Proving Elements of a
Crime: Common Law Burglary
 (a) Yes. All the required elements are present.
 (b) No, no “breaking” present; defendant is
liable for larceny (theft), though.
 (c) Yes, any use of force, however slight, is
enough for breaking.
 (d) Yes. Rape is a felony and all elements of
burglary are present.
 (e) Yes. The monkey is an agent of the
defendant’s will and all the elements are
present.
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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.
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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
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