quick assignment needed

Crimes and Torts

CHAPTER 5

“Wherever law ends, tyranny begins.” John Locke

© 2019 McGraw-Hill Education.

Learning Objectives 1

5-1 Describe the difference between a felony and a misdemeanor.

5-2 Explain why the First Amendment may sometimes serve as a defense to criminal liability.

5-3 Identify the constitutional provisions at issue when a criminal law is challenged as being excessively vague.

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Learning Objectives 2

5-4 Identify the standard of proof that the government must meet in a criminal prosecution as well as the constitutional sources of that requirement.

5-5 Identify the major steps in a criminal prosecution.

5-6 Describe the basic protections afforded by the Fourth, Fifth, and Sixth Amendments.

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Learning Objectives 3

5-7 Describe major exceptions to the Fourth Amendment’s usual preference that the government have a warrant before conducting a search.

5-8 Explain what the exclusionary rule is.

5-9 List the components of the Miranda warnings and state when law enforcement officers must give those warnings.

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Learning Objectives 4

5-10 Identify the elements that the government must prove in a criminal RICO case and that a private plaintiff must prove in a civil RICO case.

5-11 Describe the major elements that must be proven in order to establish a violation of the Computer Fraud and Abuse Act.

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Nature of Crimes

Crimes are public wrongs, classified from most serious to least serious as:

Felony.

Misdemeanor.

Infraction.

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Purpose of Criminal Sanctions

Deterrence.

Special: punishment of an offender deters him from committing further crimes.

General: punishment deters other persons from committing similar offenses.

Rehabilitation: attitudes and behaviors.

Incapacitation.

Retribution.

Probation.

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Essentials of Crime

To convict a defendant of a crime, the government must prove:

The alleged acts violated a criminal statute.

Beyond a reasonable doubt the defendant committed the acts.

The defendant had the capacity to form the requisite criminal intent.

Courts narrowly interpret criminal statutes.

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Essentials: Sekhar v United States

The Hobbs Act punishes extortion which requires the obtaining items of value from the victim.

Sekhar’s goal was to coerce - not extort - the general counsel to offer advice that accorded with his wishes.

As a result, the court held for Sekhar, because he was improperly charged with extortion.

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Constitutional Limitations 1

Government may not enact an ex post facto (after the fact) law.

Thus a person cannot be charged with a crime for an act that was not a crime when the act was committed.

Constitutionally-protected behavior cannot be deemed criminal.

Example: Griswold v. Connecticut.

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Constitutional Limitations 2

First Amendment allows government to regulate indecent speech and does not protect obscene expression.

To determine if expression is obscene, courts apply the three-part Miller test.

Example: Supreme Court applied the Miller test to strike down most of the Congressional efforts to criminalize obscenity on the Internet.

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Constitutional Limitations 3

Due Process Clauses.

Require that criminal statutes define the prohibited behavior precisely enough to enable law enforcement officers and ordinary members of the public to understand which behavior violates the law.

Statutes that fail to provide such fair notice may be challenged as unconstitutionally vague.

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Constitutional Limitations 4

Equal Protection Clause.

Prohibits criminal statutes that discriminatorily treat certain persons of the same class or arbitrarily discriminate among different classes of persons.

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Constitutional Limitations 5

Eighth Amendment.

The Constitution limits the type of punishment imposed on convicted offenders.

The Eighth Amendment forbids cruel and unusual punishments.

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Constitutional Limitations 6

Proof Beyond a Reasonable Doubt.

Defendants are presumed innocent until proven guilty beyond a reasonable doubt.

Most serious crimes require proof of the defendant’s mens rea, or criminal intent.

Defendant must have had capacity to form criminal intent.

Three types of incapacity recognized: intoxication, infancy, and insanity.

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Constitutional Limitations: Shaw v United States

Did Shaw only intend to defraud a bank customer?

Banks have property rights in their customers' bank accounts and a scheme to cheat a bank customer also deprives the bank of its property.

Against Shaw. A bank's deposits are property rights, and Shaw deprived the bank of “something of value” within the meaning of the criminal statute.

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Criminal Procedure 1

Arrest and booking of defendant.

Arrest report filed with prosecutor.

If defendant charged, a criminal complaint is filed.

Initial appearance of defendant before judicial officer.

Preliminary (probable cause) hearing.

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Criminal Procedure 2

If probable cause exists, formal charge – information or indictment – filed with court.

Arraignment of defendant in which defendant enters a plea:

Guilty, not guilty, or nolo contendere (no contest).

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Criminal Procedure 3

Defendant who pleads not guilty and faces incarceration for more than six months may choose a jury trial.

Bench trial (judge only) also available.

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Criminal Procedure 4

Constitutional Safeguards.

Fourth Amendment protects persons against unreasonable and arbitrary searches and seizures.

Interpreted by Supreme Court to protect a reasonable expectation of privacy.

General rule: warrantless searches are unreasonable (unconstitutional).

See United States v. Hall.

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Key Fourth Amendment Questions 1

Many Fourth Amendment cases carve out exceptions to the general rule, establishing activities that do not constitute a search:

Visual observation of things or activities in public view.

Narcotics detection dogs used in a public place to investigate luggage or cars.

Enhanced aerial photography of a facility.

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Key Fourth Amendment Questions 2

In Kyllo v. United States, the Supreme Court held a device (thermal imaging) used to examine what would otherwise be hidden is a search, thus presumptively unreasonable without a warrant.

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A 4th Amendment Search? United States v Jones

Was the placement of the GPS on Jones' car by law enforcement a search under the 4th Amendment?

The 4th Amendment's protection to "effects" extends to a automobile owned or operated by the defendant.

The Court held that the government’s installation of a GPS device was an unconstitutional search and violated the 4th Amendment.

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A 4th Amendment Search? United States v SDI Future Health

Do corporate executives have standing to challenge a lawful police search of company premises not reserved for the executives’ exclusive use?

A manager of a corporation does not, simply by that status, acquire Fourth Amendment standing to challenge a warrant unless she has a reasonable expectation of privacy in the premises or the items seized.

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Warrantless Searches 1

Supreme Court has held that constitutional warrantless searches include:

Search incident to lawful arrest.

Certain searches of motor vehicles.

When LEOs are in ‘hot pursuit’ of an armed suspect.

Stop-and-frisk searches for weapons.

Plain view.

Consensual searches.

Exigent circumstances (Kentucky v. King).

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Warrantless Searches 2

Supreme Court has held that constitutional warrantless searches include:

DNA swabs in the booking process.

Customs searches.

Administrative inspections of closely regulated businesses.

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The Exclusionary Rule

Prevents the use of evidence seized in an illegal search in a subsequent trial of the defendant.

The Supreme Court has also created a ‘good faith’ exception.

The USA Patriot Act.

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The Fifth Amendment 1

The Fifth Amendment provides a privilege or protection against compelled testimonial self-incrimination.

Practical meaning: a person may remain silent if making a statement would assist the government in prosecuting the person.

Miranda warnings safeguard the right.

Also prohibits prosecutorial comments at trial about the defendant’s failure to testify.

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The Fifth Amendment 2

Self-incrimination privilege applies to:

Testimonial admissions, so police may compel a defendant to provide non-testimonial evidence (fingerprints, body fluids, hair).

Applies only to humans (not corporations).

Applies only if a defendant could be charged with a crime (not merely a civil lawsuit).

Also prohibits double jeopardy.

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The Fifth Amendment: Beghuis v Thompkins

A suspect who has received and understood the Miranda warnings waives the right to remain silent by making an uncoerced statement to the police.

An accused who wants to invoke right to remain silent must do so unambiguously, and the record shows that Thompkins waived his right to remain silent by making a voluntary statement.

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Sixth Amendment

Applies to criminal cases by guarantees of:

Speedy trial.

Impartial jury.

Right to confront and cross-examine witnesses.

Right to effective assistance of counsel.

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White Collar Crimes 1

Under the modern rule, a company may be liable for criminal offenses committed by employees who acted within the scope of their employment and for the benefit of the corporation.

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White Collar Crimes 2

Individual Liability.

Regulatory offenses. Example: violating the Clean Water Act.

Issue is ‘mens rea’?

Important White-Collar Crimes.

Fraudulent Acts. Examples: false claims, fraudulent concealment, mail-wire fraud.

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White Collar Crime: United States v. Anderson

The government had to prove beyond a reasonable doubt that:

(1) two or more persons made an agreement to commit wire fraud; (2) that the defendant knew the unlawful purpose of the agreement; and (3) that the defendant joined in the agreement willful. The agreement may be silent and does not need to be formal or spoken.

Both spouses were making material misrepresentations and the record is replete with similar evidence.

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White Collar Crimes 3

Sarbanes-Oxley Act violations.

Example: Knowingly altering documents or business records with the intent to impede a government investigation.

Bribery and Illegal Gratuities.

Example: violating Foreign Corrupt Practices Act.

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White Collar Crimes 4

Racketeer Influenced and Corrupt Organizations Act (RICO) violations.

Example of criminal `RICO: using income derived from a “pattern of racketeering activity.”

Example of civil RICO: See Boyle v. United States

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RICO: RJR Nabisco v European Community

Does RICO applies extraterritorially—to events occurring and injuries suffered outside the USA?

RICO applies to some foreign racketeering activity based on a pattern of racketeering that includes predicate offenses committed abroad. And relevant provisions of the money laundering and material support of terrorism statutes expressly provide for extraterritorial application.

BUT... EC's RICO damages claims rest entirely on injury suffered abroad and were dismissed.

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Computer Crime

In general, existing criminal statutes apply to criminal activity via computers.

Computer Fraud and Abuse Act imposes criminal and civil liability on a person who “knowingly, and with intent to defraud, accesses a protected computer without authorization . . . [and] obtains anything of value.”

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Test Your Knowledge 1

True A, False B

An employee’s sole duty is to his or her employer.

RICO violations are only criminal in nature.

An employee may access a company’s computer to obtain personal information about his or her supervisor and use the information to persuade the supervisor to give the employee a raise.

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Test Your Knowledge 2

True A, False B

To convict a defendant of a crime, the government must prove beyond a reasonable doubt that the defendant committed the acts.

Obscenity is fully protected speech by the First Amendment to the Constitution.

Only felonies require proof of the defendant’s mens rea, or criminal intent.

A defendant may choose one of three pleas: guilty, not guilty, and nolo contendere.

© 2019 McGraw-Hill Education.

Test Your Knowledge 3

True A, False B

The Bill of Rights is the first dozen amendments to the Constitution.

The Fourth Amendment provides a privilege from self-incrimination and double jeopardy.

The Fifth Amendment protects persons against unreasonable and arbitrary searches and seizures.

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Test Your Knowledge 4

Multiple Choice

Sixth Amendment to the Constitution guarantees:

Speedy trial.

Right to confront and cross-examine witnesses.

Right to effective assistance of counsel.

Impartial jury.

All of the above.

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Test Your Knowledge 5

Multiple Choice

Which of the following would not be a constitutional search?

Taking bag of shredded documents from a dumpster.

Aerial surveillance of a manufacturing plant.

Thermal imaging device to detect heat in a home.

A stop-and-frisk search for weapons.

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