CHAPTER 5
CRIMES
Outline
I. The Nature of Crimes
Crimes are public wrongs and the state rather than an individual party brings prosecutions. Crimes are classified as either felonies or misdemeanors.
II. The Essentials of Crime
The state must prove a criminal statute existed at the time the act was committed, that defendant's acts violated that statute, defendant had the capacity to form a criminal intent, and formed that intent.
A. Prior Statutory Prohibition
The legislature must have passed a statute making the act criminal before the act was committed to prevent ex post facto laws.
Example: Chaffee v. Roger: The U.S. District Court in Chaffee 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.”
B. Proof beyond a Reasonable Doubt
Criminal defendants are presumed innocent. The state must prove every element of the offense charged against defendant beyond a reasonable doubt.
C. The Defendant’s Capacity
The requirement of criminal intent (mens rea) is an element of most serious crimes. The criminal law seeks to punish conscious wrongdoers. A person may be incapable of forming criminal intent due to intoxication, infancy, or insanity.
Example: Clark v. Arizona: The court found that the insanity rule is substantially open to state choice. An insanity defense that only focuses on whether the defendant knew his actions were wrong does not violate the Due Process clause of the Constitution.
III. Criminal Procedure
A. Our system has procedural safeguards to protect the accused. The Fifth Amendment protects defendants against self-incrimination and multiple prosecutions. The Miranda warning protects defendants from unreasonable and warrantless searches.
Example: United States v. Mann: The court found that additional evidence found during a legal search does not violate the Fourth Amendment.
B. The USA PATRIOT Act was designed to protect against future terrorist acts.
C. The Crime Victims’ Rights Act allows the victim to be reasonably heard at public sentencing proceedings in federal district court.
IV. Crime and Business People
A. Personal liability for corporate executives has been imposed under the theory this will deter violation of laws.
Example: United States v. Hong: Hong may not actually be a corporate officer, but he is found liable under the “responsible corporate officer” doctrine.
B. Other issues include problems with individual liability, and application of RICO (Racketeer Influenced and Corrupt Organizations Act) to businesses.
C. Other illustrations of a "get tough" attitude are recently adopted federal sentencing guidelines.
D. The Sarbanes-Oxley Act of 2002 drastically expands the accountability of corporate officers and directors.
E. Numerous white-collar crimes continue to be prosecuted under the Racketeer Influenced and Corrupt Organizations Act (RICO).
Example: In Boyle v. United States: The court stated that RICO does not require an “enterprise” to have a formal structure.
F. The Foreign Corrupt Practices Act makes it a crime for any American firm to offer, promise, or make payments to foreign officials.
G. As business transactions increasingly cross national borders, cooperative antibribery efforts have become vital.
V. Cybercrime
With the increased use of internet connections, including e-mail and social medias, comes new and more complex ways to commit crimes. Both federal and state laws spell out the specifics of computer crime.
A. The Electronic Communications Privacy Act imposes privacy obligations on those who process and handle electronic communications.
B. The Computer Fraud and Abuse Act civilly and criminally prohibits a person without authorization fro knowingly transmitting a program, information, code, or command with the intent of causing damage to a computer.
C. Recent “get tough” approaches to cybercrime have developed into computer crime legislation.
D. Thirty-eight nations globally have signed the “Convention on Cybercrime” attempting to fight computer related crime internationally.
Learning Objectives
1. You should be able to distinguish the parties involved in civil and criminal actions, the standard of proof, and the burden of proof required in each action.
2. You should be familiar with the rationales for punishment underlying criminal law.
3. You should know the essentials of crime and be able to explain constitutional protections that apply in criminal prosecutions.
4. You should know the general difference between a felony and a misdemeanor.
5. You should know the rules surrounding the three major types of criminal incapacity: intoxication, infancy, and insanity.
6. You should be familiar with the more important procedural protections that our legal system has developed to protect the accused.
7. You should understand the trends and problems for the criminal justice system as it deals with white-collar crime.
8. You should understand the purpose of RICO and its application to business and corporate executives.
9. You should understand the main features of the Sarbanes-Oxley Act.
10. You should understand the highlights of the Foreign Corrupt Practices Act.
11. You should understand the basic points of laws aimed at cybercrime.
Learning Hints
1. One important difference between criminal and civil law is the purpose or function of the action. An important purpose of criminal prosecution is to punish in order to deter similar activity in the future. The purpose of civil law, on the other hand, is to compensate the plaintiff for injury caused by the wrongful act of the defendant.
2. An essential requirement of a crime is that there be a statute in effect at the time the defendant's act occurred that prohibited that activity. A statute passed after the act occurred cannot be the basis of a criminal prosecution under the constitutional prohibition against ex post facto laws.
3. The postponement of trial or sentencing, or the acquittal of the defendant, on the basis of the defendant's insanity does not necessarily mean that the defendant will be released from custody. In many such cases, the defendant is committed to an institution for psychiatric treatment.
4. Remember that whether a given act is classified as criminal or not is a social question, and that only the legislature can criminalize behavior in the U.S.
5. The protections provided for persons accused of crime are designed to prevent innocent people from being convicted of crimes they did not commit, and also represent the appropriate role of government in a democracy.
6. White-collar crimes are usually characterized by non-violence and deceit, but they do cost the public billions of dollars a year, and often maim and kill.
True-False
In the blank provided, put "T" if the statement is True or "F" if the statement is False.
_____ 1. Crimes are defined as private wrongs against individuals for which compensation can be sought.
_____ 2. In order for someone to be convicted of a crime, the prosecution must prove beyond a reasonable doubt that the accused person committed a crime.
_____ 3. Congress or the state legislatures define crimes.
_____ 4. Voluntary intoxication is a complete defense to criminal liability.
_____ 5. The fourth amendment prohibits any search or seizure of a criminal defendant without a warrant.
_____ 6. The Federal Sentencing Guidelines mandate stiffer penalties for white-collar crime.
_____ 7. Many prosecutions of white-collar criminals are controversial because it is often difficult to prove criminal intent on the part of high-level corporate executives.
_____ 8. Some criminal statutes impose liability on a corporate executive for the acts or omissions of other corporate employees without requiring proof of criminal intent or knowledge on the part of any corporate employee.
_____ 9. Companies could face both criminal and civil liability under RICO.
_____ 10. A person who was insane at the time he committed a crime cannot use his insanity as a defense to absolve him from the criminal liability.
Multiple Choice
Circle the best answer.
1. Mary was arrested for loitering under the provisions of a statute that prohibited "being in the same general location for at least 15 minutes during which he had two or more face-to-face encounters that lasted no more than two minutes, while exchanging money." Her best defense to prosecution is:
a. She lacked the capacity to commit the offense.
b. Prosecution is prohibited under the constitutional prohibition against ex post facto laws.
c. The statute violates the first amendment of the U.S. Constitution.
d. None of the above is a good defense to prosecution under this ordinance.
2. Which of the following statements regarding insanity is not true?
a. Modern courts may require a defendant to prove her insanity beyond a reasonable doubt.
b. Under the irresistible impulse test, a defendant is not criminally responsible for his acts due to a mental illness.
c. A trial cannot be delayed for an insane person who is not capable of assisting in his defense.
d. Some courts have found defendants guilty, but mentally ill.
3. Which of the following statements concerning crime is not true?
a. Misdemeanors are serious crimes that can result in disenfranchisement.
b. Crimes are public wrongs committed against the state or federal government.
c. As an example of an ex post facto law, once Prohibition became the law of the land, Al Capone could not have been convicted of selling liquor before the law had been passed.
d. Rape is an example of a felony.
4. The Eighth Amendment to the United States Constitution:
a. Protects persons charged with crimes by requiring that they be warned that they have the right to counsel.
b. Protects persons against unreasonable search and seizure.
c. Protects those accused of crimes by providing they have the right to confront and cross-examine their accusers.
d. Prohibits excessive bail and fines and cruel and unusual punishment.
5. Which of the following is generally not essential for the state to convict someone of criminal behavior?
a. That the accused person premeditated the crime.
b. A prior statutory prohibition of the act.
c. Proof beyond a reasonable doubt that the defendant committed every element of the criminal offense.
d. Proof that the defendant had the capacity to form criminal intent.
6. Which of the following statements is not true?
a. Mens rea is a necessary element for most serious crimes.
b. Infancy relating to capacity for criminal intent is not rebuttable by evidence.
c. Voluntary intoxication may prevent the formation of criminal intent.
d. Premeditation may be necessary to convict someone of first-degree murder.
7. Which of the following statements is not true?
a. A warrant for a search can generally be issued even without probable cause.
b. Acquitted defendants cannot be tried twice for the same crime.
c. Defendants in criminal cases have the right to remain silent.
d. Accused persons have the right to a speedy public trial by jury.
8. Which of the following pieces of evidence is a court required by the Fifth Amendment to exclude from the evidence admitted at trial?
a. Samples of the defendant's hair that were clipped from his head by the arresting officers without his consent.
b. The defendant's confession to the commission of the crime, which occurred after he was arrested and advised of his Miranda rights.
c. Fingerprints of the defendant obtained through governmental compulsion.
d. None of the above.
9. Which of the following statements is not true?
a. The Federal Sentencing Guidelines may cause stiffer penalties to be imposed on someone convicted of insider trading, such as Martha Stewart.
b. RICO has been used even against legitimate businesses that are involved in white-collar crime.
c. Persons injured by RICO violations may sue for treble damages plus attorney’s fees.
d. The Supreme Court has narrowed the application of RICO so that it no longer can be applied to
legitimate businesses.
10. Which of the following is prohibited under RICO?
a. Using income derived from a pattern of racketeering activity.
b. Acquiring an interest in an organization through a pattern of racketeering activity.
c. Conducting the operations of an organization through a pattern of racketeering activity.
d. All of the above.
Short Essay
1. Jane was a passenger in her boyfriend's (Jack's) car when he was arrested for criminal trespass. The statute made it a criminal offense to knowingly or intentionally trespass upon the land of another. Jack had taken a short cut through the back of a neighbor's property in his car when the arrest occurred. Explain two defenses to prosecution that Jane may raise in this case.
2. Briefly distinguish between misdemeanors and felonies. Give an example of each.
3. For a period of ten years, Ted stalked, raped, and murdered a total of 25 women. Do you think it is likely that Ted could be absolved from these criminal acts by stating a plea of insanity?
4. Because of the events of September 11, 2001, a wide variety of new technologies are being adapted by government agencies to combat terrorism. One such device is a full-body x-ray screening device used to help detect weapons and/or explosives. The technology is very effective, but some have argued that it is effective because it results in a “strip search” where the machine can see through all clothing. Does this technology violate the 4th Amendment?
5. Briefly discuss the balance in our legal system; the desire to prosecute those people who are guilty of criminal activity balanced against the protection of rights for people in our legal system.
6. Ex post facto rules generally apply to offenses that are categorized as crimes. What about statutory provisions that have elements of both criminal and civil sanctions? For example, a number of tax laws are passed every year that have retroactive effects to dates before the passage of the tax act. Does this practice violate the constitutional prohibition against retroactive laws?
7. Why do you think that there has been more of a get-tough attitude toward white-collar criminals in recent years?
8. Briefly discuss RICO. Do you think Congress in 1970 intentionally drafted this law by using broad languge so that the law could be used against not only organized crime families, but also against legitimate business who engage in white-collar crime?
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