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6 The Enforcement of Laws

and the Collection, Preservation, and Interpretation of Evidence

CHAPTER OUTLINE

Introduction: Private Security’s Role in Enforcing the Law....................................................... 220

Defining Criminal Liability............................................................................................................ 220

The Criminal Act (Actus Reus) ..................................................................................................221

The Criminal Mind (Mens Rea).................................................................................................222

Classification of Criminal Offenses and Related Penalties ........................................................ 225

Specific Types of Crimes and Offenses ....................................................................................... 227

Offenses against the Person .....................................................................................................227

Felonious Homicide ................................................................................................................. 227

Murder ................................................................................................................................... 227

Manslaughter.......................................................................................................................... 228

Felony Murder Rule................................................................................................................. 229

Assault.................................................................................................................................... 230

Kidnapping and False Imprisonment ........................................................................................ 231

Sexual Offenses ...................................................................................................................... 233

Offenses against the Habitation and Other Buildings ...........................................................260

Arson...................................................................................................................................... 260

Burglary .................................................................................................................................. 261

Robbery .................................................................................................................................. 267

Theft or Larceny...................................................................................................................... 267

Forgery ................................................................................................................................... 275

Offenses against Public Order and Decency............................................................................277

Riot......................................................................................................................................... 278

Public Drunkenness ................................................................................................................. 279

Other Public Order Provisions .................................................................................................. 279

Evidence and Proof ...................................................................................................................280

The Chain of Custody ............................................................................................................. 280

The Admission of Business Records ......................................................................................... 282

Real and Demonstrative Evidence ............................................................................................ 283

Lay Witnesses ......................................................................................................................... 285

Expert Witnesses ..................................................................................................................... 286

Practical Exercise: Cross-Examination ....................................................................................... 288

A. Potpourri of Evidentiary Principles ....................................................................................... 288

Summary........................................................................................................................................ 292

Discussion Questions .................................................................................................................... 292

Notes.............................................................................................................................................. 293

Private Security and the Law

Nemeth, C. (2011). Private security and the law. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from apus on 2020-10-13 13:20:29.

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Introduction: Private Security’s Role in Enforcing the Law Private security is an indispensable cog in the American machinery of justice. Previous

commentary outlines the Herculean contributions made by the industry in the protec-

tion of social and economic order. Even private security’s harshest, most strident critics

realize that without the services of private security, a gaping, colossal protection vacuum

would exist in the distribution of justice, the protection of assets and facilities, and

related services. Public policing alone simply cannot fend off the escalating criminality

or solely assure the integrity of community and governmental infrastructures. It is com-

mon knowledge that the security industry performs numerous functions, from crowd

control to physical perimeter protection in public and private installations, and deter-

rent and preventive activities regarding shoplifting and other corporate crime. But pre-

cisely which laws, statutes, or specific violations cover these sorts of activities? Does it

make imminent sense that private security operatives have training and foundational

knowledge in the law of crimes as well as the underlying proof requirements? And if

the industry is to make a meaningful contribution in the apprehension and subsequent

prosecution of criminal behavior, must its agents know and understand the evidentiary

demands for a successful prosecution? Surely any professional security force will need to

comprehend the definitions of criminal behavior and the evidentiary proof that must

accompany any attempt to successfully conclude a criminal investigation and prosecu-

tion. These are the chief aims of the chapter.

Defining Criminal Liability Before private security operatives can intelligently detect or enforce criminal behavior,

they must master the essential elements of the alleged criminal behavior. More particu-

larly, the industry must focus on the crimes more likely encountered by its field

personnel.

Every crime consists of two basic elements:

1. The criminal act: actus reus

2. The mental intent: mens rea

Taking these elements into consideration, guilt under nearly all criminal offenses

calls for proof of both the act itself and the mind that triggers, intends, or prompts the

act. In the mental faculty requirement, the actor must do more than merely act, but con-

template upon the act before its commission and present some sort of mental intention-

ality. One without the other is bound to lead to failure in the American conception of

criminal culpability.

In some intellectual circles there is a third element—namely, causation, which

demands proof that the act and the mind together, working in consort, lead to a

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particular consequence. While not necessarily central to every criminal advocacy, it is

wise to consider the question of whether a criminal’s mind prompted a particular act

that in turn caused a particular harm or injury. This is a thumbnail sketch of the criminal

definition.

The Criminal Act (Actus Reus)

Not unexpectedly, criminal liability cannot attach without a deed, an act, an offense, or

an omission of specifically enumerated conduct. Crimes are not inventions or fantasies

but real human activity. Merely thinking about crimes, with rare exceptions, is not crim-

inally punishable. Thoughts, no matter how bizarre or perverted, are not punishable

unless put into effect. Thus, in order to be found guilty of theft, an individual has to take

overt steps toward the unlawful taking of another’s property. He or she may think obses-

sively about the desire to be in possession of some object, but until some overt act or

course of conduct is chosen and put into effect, there is no actus reus.1 Hence, every

criminal construction insists on an act of some sort.

A criminal act must be a voluntary act. The law does not hold accountable those indi-

viduals who are mentally incapacitated or operating against their will, by either duress

or coercion, or suffering from a related or corollary disease or mental defect that substan-

tially impacts the mental faculty.2 The American Law Institute’s Model Penal Code, in its

proposed 1962 draft, defines the nature of a voluntary act for criminal liability purposes:

Requirement of Voluntary Act; Admission as Basis of Liability; Possession Is an Act.

(1) A person is not guilty of an offense unless his liability is based on conduct which

includes a voluntary act or the omission to perform an act of which he is

physically capable.

(2) The following are not voluntary acts within the meaning of this Section.

(a) a reflex or convulsion;

(b) a bodily movement during unconsciousness or sleep;

(d) a bodily movement that otherwise is not a product of the effort or

determination of the actor, either conscious or habitual.

(3) Liability for the commission of an offense may not be based on an omission

unaccompanied by action unless;

(a) the omission is expressly made sufficient by the law defining the offense; or

(b) the duty to perform the omitted act is otherwise imposed by law.3

Criminal liability does not attach unless the prosecution can demonstrate an act that

is voluntary and not the result of unintentional, accidental, or nonvolitional circum-

stances. Acts by omission—that is, a failure to act when the law so dictates, such as

the case of a parent who neglects his child or fails to save the child when in peril—are

also within the definition of actus reus.4 In this sense, acts fall into two categories: com-

mission and omission.

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n n n

For a fascinating report on how federal codes are eroding the requirements of a mental state,

read the Heritage Foundation’s report at http://www.heritage.org/research/reports/2010/05/

the-criminal-intent-report-congress-is-eroding-the-mens-rea-requirement-in-federal-

criminal-law.

n n n

An incident report form, like Figure 6.1,5 aids the security investigator in determining

the nature of the act.

The Criminal Mind (Mens Rea)

Determining the state of one’s mind, the mens rea, is a much more complicated exercise

than the proof of a criminal act. It has long been a major tenet of American jurispru-

dence that persons not in control of their mind or fully functional in mental state are

less likely to be criminally responsible. Subjectively or objectively appraising what is in

a person’s mind can be gleaned from the facts themselves, the corpus delicti, the state-

ments and comments of the actor by oral or written form, as well as psychological and

psychiatric evidence. All of these conclusions must be linked to the crime in question.

While most scholars and academics concede that there is such a thing as mens rea, it

is, nevertheless, very subjective and difficult to prove.6 That a defendant may intend

the general consequences of a certain action is clear, but how intensely the person actu-

ally desires to cause harm and the actual injury level the individual intends is harder to

quantify.

Consider the various descriptive adjectives and adverbs that are utilized to describe a

person’s state of mind:

• Felonious intent

• Criminal intent

• Malice aforethought

• Premeditated

• Guilty knowledge

• Fraudulent intent

• Willful with scienter

• With guilty knowledge

• Maliciously

• Viciously

• Intentionally

• With gross disregard

• With depraved heart

• With an evil purpose

• Wantonly

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FIGURE 6.1 Incident Report.

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• Lawfully

• Without justification

• With a corrupted mind

• Criminally negligent

• With disregard for human life

• With depraved indifference

• Without moral turpitude

• Without justification

• Overtly

• With mischievous intent7

Admittedly, these terms can never fully describe the actor’s mind, but at best they

imply the conduct’s level of intentionality. Mens rea codifications attempt to catego-

rize malefactors and their respective mental states, although this is an imperfect

exercise.

n n n

Evaluate the Power Point presentation from the University of North Texas at http://pacs.unt

.edu/criminal-justice/Course_Pages/CJUS_2100/2100chapter2.ppt#329,10,Slide 10.

n n n Diverse descriptive states of culpability have been encompassed in the Model Penal

Code. Some portions are reproduced as follows:

General Requirements of Culpability.

(1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person

is not guilty of an offense unless he acted purposely, knowingly, recklessly or

negligently as the law may require, with respect to each material element of the

offense.

(2) Kinds of Culpability Defined.

(a) Purposely.

A person acts purposely with respect to a material element of an offense

when:

(i) if the element involves the nature of his conduct or a result thereof, it is his

conscious object to engage in conduct . . .

(ii) if the element involves the attendant circumstances, he is aware of the

existence of such circumstances . . .

(b) Knowingly.

A person acts knowingly with respect to a material element of an offense

when:

(i) if the element involved the nature of his conduct or the attendant

circumstances, he is aware that his conduct is of that nature or he knows

such circumstances exist; and

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(ii) if the element involves the result of his conduct he is aware that it is

practically certain that his conduct will cause such a result.

A person acts recklessly with respect to a material element of an offense when he

consciously disregards a substantial and unjustifiable risk that the material element

exists or will result from his conduct. . . .

(d) Negligently.

A person acts negligently with respect to a material element of an offense when he

should be aware of a substantial and unjustifiable risk that the material element

exists or will result from his conduct.8

Security professionals should be vigilant in their assessment of facts and conditions

at a crime scene because conduct can be explained in more than one way. Instead of

always assuming a crime occurred, look for secondary explanations, such as mistake

of fact or law regarding a right to property; inadvertent entry rather than an unlawful

trespass; or an act of self-defense rather than an offensive touching. Security investiga-

tors and officers must not assume that the act is coupled with a criminal mind. Neither

the act nor the mind alone will suffice since “criminal liability is predicated upon a

union of act and intent or criminal negligence.”9

Classification of Criminal Offenses and Related Penalties Common law and statutory guidelines also characterize criminal behavior into various

classifications or types. Those classifications generally include the following:

• Felony10

• Misdemeanor11

• Summary offense12

• Treason13 and other infamous crimes

The security industry’s concern will be the detection and apprehension of misdemea-

nants and felons whose crimes constitute the basic menu of criminal charges including

assault, battery, theft and related property offenses, sexual offenses, intimidation and

harassment, and white-collar crime including forgery, credit card fraud, and the like.

Treason and other infamous crimes emerge in cases of international terrorism and

homeland security, and given the rising influence of private sector justice in the global

war on terror, they should give rise to more involvement. The entire airspace industry

is dependent on personnel not only trained in security issues but also the criminal

law issues that surround breaches of security at airport facilities. Shoplifting and retail

theft may be designated a “summary” offense. Summary offenses generally consist of

public order violations, including failure to pay parking tickets, creating a temporary

Chapter 6 • Collection, Preservation, and Interpretation of Evidence 225

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obstruction in a public place, public intoxication, or other offenses of a less serious

nature that are rarely punishable by a term of imprisonment14 but are regularly

witnessed by the security professional, like lower-level shoplifting.

At common law, the designation of an act as a felony constituted an extremely seri-

ous offense. Penal and correctional response to felony behavior included the death pen-

alty and forfeiture of all lands, goods, and other personal property. Generally, a felony

was any capital offense, namely, murder, manslaughter, rape, sodomy, robbery, larceny,

arson, burglary, mayhem, and other violent conduct.15 An alternative way of defining a

felony was the severity of its corresponding punishment. Felony was defined “to mean

offenses for which the offender, on conviction, may be punished by death or imprison-

ment in the state prison or penitentiary; but in the absence of such statute the word is

used to designate such serious offenses as were formally punishable by death, or by for-

feiture of the lands or goods of the offender.”16 In other words, a crime could be a felony

or a misdemeanor not because of its severity or subsequent impact but because of the

term of incarceration. Modern criminal analysis shows confused and perplexing legisla-

tive decision making on the nature of a felony and a misdemeanor. The President’s

Commission on Law Enforcement and Administration of Justice, in its Task Force Report

on the Courts,17 relates:

A study of the Oregon Penal Code revealed that 1,413 criminal statutes contained a

total of 466 different types and lengths of sentences. The absence of legislative atten-

tion to the whole range of penalties may also be demonstrated by comparisons

between certain offenses. A recent study of the Colorado Statutes disclosed that a

person convicted of a first degree murder must serve ten (10) years before becoming

eligible for parole, while a person convicted of a lesser degree of the same offense

must serve at least fifteen (15) years; destruction of a house with fire is punishable

by a maximum twenty (20) years imprisonment, but destruction of a house with

explosives carries a ten (10) year maximum. In California, an offender who breaks

into an automobile to steal the contents of the glove compartment is subject to a fif-

teen (15) year maximum sentence but if he stole the car itself, he would face a max-

imum ten (10) year term.

Although each offense must be defined in a separate statutory provision, the num-

ber and variety of sentencing distinctions which result when legislatures prescribe a

separate penalty for each offense are among the main causes of the anarchy in sen-

tencing that is so widely deplored.18

In defining the term “misdemeanor,” legislatures and jurists use a process of elimina-

tion holding that an offense not deemed a felony is, deductively, a misdemeanor. Usually

misdemeanors are offenses punishable by less than a year’s incarceration. The popular

perception that misdemeanors are not serious offenses may be a faulty impression.

Criminal codes surprise even the most seasoned justice practitioner, who frequently

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finds little logic in an offense’s definition, resulting classification, and corresponding

punishment. For examples of this confusion, review selected state code provisions on

“sexual offenses.”19

Specific Types of Crimes and Offenses

Offenses against the Person

Felonious Homicide The security industry cannot avoid the ravages of criminal homicide, and in fact,

because of the improper use of weaponry or mistaken identity, it is sometimes the

accused. Criminal acts of homicide are being recorded because of the installation,

maintenance, and operational oversight of electronic surveillance systems and other

technological equipment utilized to protect the internal and external premises of

businesses. As the public sector continues to transfer and privatize many of its tradi-

tionally public police functions, such as in the area of courtroom and prison security,

violent acts of homicide are unfortunately replayed. Airport terrorism, failed executive

protection programs, and attempted or actual homicides on armored car money car-

riers are other distressing examples of criminal homicide. This subsection deals only

with felonious acts of homicide, and the security professional is reminded that non-

culpable homicide occurs in cases of self-defense, necessity in time of war, or by legal

right, authority, or privilege.20 Criminal homicide is defined by the Model Penal Code

as follows:

(1) A person is guilty of criminal homicide if he purposely, knowingly, recklessly

or negligently causes the death of another human being.

(2) Criminal homicide is murder, manslaughter or negligent homicide.21

The Model Penal Code, after this general legislative introduction, precisely defines each

type of homicide.

Murder A charge of murder will be upheld when,

(a) it is committed purposely or knowingly; or

(b) it is committed recklessly under circumstances manifesting extreme indifference to

the value of human life. Such recklessness and indifference are presumed if the

actor is engaged or is an accomplice in the commission of, or an attempt to commit,

or flight after committing or attempting to commit robbery, rape, deviate sexual

intercourse by force or threat of force, arson, burglary, kidnapping or felonious

escape.22

The code as suggested requires a high level of mental faculty. While the law of criminal

intent varies, most major capital offenses require what is known as specific intent.23

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Specific intent can be loosely described as premeditation or a mind possessive of malice

aforethought. In other words, the criminal actor wants, desires, wishes, knows, and realizes

the ramifications and repercussions of his or her activity. Although the law does not require

an intelligent or an esoteric thinker, there is a clear, lucid mindset operating. The level of

mind required for a charge of murder was clearly discerned in a Michigan case, People v.

Moran:24

Malice aforethought is the intention to kill, actual or implied, under circumstances

which do not constitute excuse or justification or mitigate the degree of the offense

of manslaughter. The intent to kill may be implied where the actor actually intends

to inflict great bodily harm or the natural tendency of his behavior is to cause death

or great bodily harm.25

Despite the legal attempts to objectify mental intentions, there will always be subjective

underpinnings. The security practitioner must gauge conduct in light of all circum-

stances. He or she must ask him or herself whether the facts of a given case lead a rea-

sonable person to the conclusion that the person not only knew what he or she was

doing but wished both the method and the end result.

Manslaughter Less crystalline as to intentionality, criminal codifications make room for a mindset

that is impacted or effected by mitigation and other external forces. In homicide,

the crime that fits this description is manslaughter. Most jurisdictions further grade

felonious homicide into another central category: voluntary or involuntary man-

slaughter.26 While specific intent is always required for a charge of murder, except

in cases of strict liability such as cop killing and felonious homicide, actions and con-

duct that are not as intellectually precise, not as free from influential mitigating fac-

tors and provocation, sometimes qualify for a less rigorous mental state, that of

general intent.27 This is not to say that some jurisdictions do not have a specific

intent requirement for a manslaughter charge, for there are diverse ways of classifying

the mind in the law of manslaughter. For the most part, a charge of manslaughter,

whether voluntary or involuntary, has a significantly smaller burden of proof regard-

ing the actor’s objective state of mind. This distinct language is readily discoverable in

the following statute:

2503 Voluntary Manslaughter

(a) General rule—A person who kills an individual without lawful justification

commits voluntary manslaughter if at the time of the killing he is acting under

a sudden and intense passion resulting from serious provocation by:

(1) the individual killed; or

(2) another whom the actor endeavors to kill, but he negligently or accidentally

causes the death of the individual killed.28

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2504 Involuntary Manslaughter

(a) General rule—A person is guilty of involuntary manslaughter when as a direct

result of the doing of an unlawful act in a reckless or grossly negligent manner, or

the doing of a lawful act in a reckless or grossly negligent manner, he causes the

death of another person.29

Compared to the murder statute, the language of the voluntary manslaughter provi-

sion permits an evaluation of various mitigating circumstances including provocation,

intense and emotional passion, and sudden and impetuous events.30 In involuntary

cases, the issue of gross negligence is appropriately weighed. In these cases, the court

instructs the jury on the negligent nature of the act that causes harm. The defendant

need not specifically intend the commission of any crime but could have or should have

known the consequences. These are acts, mistaken and accidental in nature, unrespon-

sive to others. Cases of automobile manslaughter or the mishandling of weapons while

in a drunken stupor are good examples.31

In security settings, manslaughter is a more common event, particularly since practi-

tioners are often called upon in hostile crowd control situations, in the maintenance of

order at special events, and for related activities.

n n n

Read and interpret a California vehicular manslaughter law at http://dmv.ca.gov/pubs/vctop/

appndxa/penalco/penco191_5.htm.

n n n

Felony Murder Rule Whether the jurisdiction has a felony murder rule (FMR) in operation is another secu-

rity industry concern since the charge has far-reaching tentacles that pull in all opera-

tives acting in consort with one another. Hence, if a team of four security officers are on

a stakeout and one of them unlawfully shoots another, even one of the officers,

and lacks the privilege or right to do so, all will be held accountable. One of the

officers would have to be engaged in felonious conduct. As outlined in the Code Section

210.1(a) above on criminal homicide, a charge of murder is appropriate when any indi-

vidual dies during the commission of any major capital felony.32 Co-conspirators,

accomplices, or other individuals, even though they did not pull the trigger, plan the

murder, or personally wish or desire for the death of another, can be felony murderers.

Hence, bank robbers or home invaders committing burglary, causing the death of any

party, whether it be responding police, inhabitants, or even the partners in crime, will

trigger the FMR.

The felony murder rule has been the subject of severe legal challenges in recent

years. “There has been a discernible but not universal trend towards limiting the felony

murder doctrine. The trend seems to be related to increasing skepticism as the extent to

which the felony murder rule in fact serves a legitimate function or at least as to whether

it serves its function or functions at an acceptable cost.”33 The most heated debate

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occurs when two or more persons are engaged in a theft, robbery, or burglary, obviously

less serious offenses than murder or manslaughter, and someone dies by accident or

negligence.34 However, the strict liability nature of the felony murder rule forces crim-

inals to think of the possible potential ramifications of their behavior, which surely

includes the death of the participants and bystanders, during the commission of a felo-

nious act.35

n n n

There are groups and associations solely dedicated to elimination of the Felony Murder Rule.

See Felonymurder.org at: http://felonymurder.org.

n n n

Assault Aside from theft actions, security officers witness no other crime as regularly as assault

and battery. In Chapter 4, readers were introduced to the concept of assault in a

civil sense, although there is a corresponding criminal definition as well. At common

law, assault and battery were separate offenses, the former being a threat to touch

or harm and the latter being the actual offensive touching. Most jurisdictions

have merged the offenses, at least in a criminal context, while still distinguishing the

offenses by severity and degree. The Model Penal Code poses the following

construction:

(1) Simple Assault. A person is guilty of assault if he:

(a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to

another; or

(b) negligently causes bodily injury to another with a deadly weapon; or

bodily harm.

(2) Aggravated Assault. A person is guilty of aggravated assault if he:

(a) attempts to cause serious bodily injury to another, or causes such injury

purposely, knowingly or recklessly under circumstances manifesting extreme

indifference to the value of human life; or

(b) attempts to cause or purposely or knowingly causes bodily injury to another

with a deadly weapon.36

Most security specialists will encounter the crimes known as assault. Efforts to

control crowds, secure buildings and installations, apprehend or detain a disgruntled

employee, break up disputants in commercial establishments, and handle unruly

and disgruntled shoppers in retail establishments are ripe settings to encounter

assailants.

Assault can be an extremely serious offense, particularly under the “aggravated” pro-

vision.37 In fact, some jurisdictions have adopted reckless endangerment,38 a new statu-

tory design that describes even more severe conduct. See the following example:

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(3) A person acts recklessly with respect to a material element of an offense when he

consciously disregards a substantial and unjustifiable risk that the material element

exists or will result from his conduct.

The risk must be of such a nature and degree that, considering the nature and

intent of the actor’s conduct and the circumstances known to him, its disregard

involves a gross deviation from the standard of conduct that a reasonable person

would observe in the actor’s situation.39

Assaults are now a recurring concern for security officers working in domestic and

international terrorism. It behooves security policymakers and planners to educate

themselves as well as their staff on these criminal acts and corresponding statutes:

• Terrorist threats

• Use of tear gas or other noxious substances

• Harassment

• Ethnic intimidation40

Proof of an assault may or may not require proof of physical injuries. Any injuries

alleged can be recorded in the personal injury report shown in Figure 6.2.41

Kidnapping and False Imprisonment Kidnapping and false imprisonment actions are relevant to the security industry

because of its heavy involvement in executive protection and counterterrorism. Political

figures, military commanders and state guests, as well as traditional celebrities, provide

instant targets for our enemies.

Kidnapping consists of the unlawful confinement or restraint of a victim, with an

accompanying movement or transportation, for the purpose of ransom, political benefit

or other motivation, including the desire to inflict harm. The Model Penal Code sets out

the essential elements:

A person is guilty of kidnapping if he unlawfully removes another from his place of

residence or business, or a substantial distance from the vicinity where he is found,

or if he unlawfully confines another for a substantial period in a place of isolation,

with any of the following purposes:

(a) to hold for ransom or reward, or as a shield or hostage; or

(b) to facilitate commission of any felony or flight thereafter; or

(d) to interfere with the performance of any government or political function.42

While most of this codification is clear on its face, legal scholars and advocates fre-

quently contest the transportation or “carrying away” requirement. Modern interpretation,

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FIGURE 6.2 Personal Injury Report Form.

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which is generally rather liberal, rejects the view of geographic transfer that is from

one locale to another and adopts the “any movement” standard as being sufficient.43

Kidnapping is usually coupled with false imprisonment and rightfully so. Security profes-

sionals who detain or restrict themovements of a consumer in retail settings, unprotected by

merchants’ privilege or other statutory immunitymay be criminally liable for false imprison-

ment. False imprisonment is both a civil and criminal action. Here is a typical construction:

A person commits a misdemeanor if he knowingly restrains another unlawfully so

as to interfere substantially with his liberty.44

Any security-based investigation, whereby a suspect’s freedom to move is abridged,

rightly or wrongly, can give rise to the claim of false imprisonment. Kelley V. Rea, a prin-

cipal in the security firm Legal and Security Services, Ltd., highlights this ongoing risk.

We also continue to read a surprising number of cases, arising out of investigations,

with allegations of false imprisonment and infliction of emotional distress. Where a

person is held against his or her will or where that person is subjected to “outra-

geous” conduct, such charges may arise. Conducting an “interview” that lasts more

than an hour and giving the person interviewed the impression that he or she is not

free to leave may trigger a charge of false imprisonment. Long, tough, threatening

questioning, particularly if physical threats are made or physical force used, will

often lead to infliction of emotional distress allegations.45

Aside from the physical harm, pain and suffering awards for psychic damages tend to

be fairly generous when the confinement and detention is without justification.46 The

litigiousness of making an accusation or claim should at least prompt a cautious

approach on the security claim operative. In cases of criminal conduct, it may be sound

to completely turn over the case to public law enforcement.

n n n

For a series of damage awards in civil actions for false imprisonment, see http://www.jvra

.com/verdict_trak/professional.aspx?page¼2&search¼491. n n n

Sexual Offenses Those entrusted with the task of ensuring safe business and industrial environments

now must consider the ramifications of illegal sexual interaction between employers

and employees and the increasing sexual victimization of guests, invitees, or licensees

on the premises. The investigation and identification of sexual misconduct in the work-

place is a major security responsibility. So too in the prison environment, where private

prisons operated by private personnel play a central role in providing a safe environ-

ment. Most states provide levels of protections and corresponding liability for failure

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to provide. See Figure 6.3,47 which charts 50 jurisdictions. Negligent hiring and supervi-

sion cases are frequently based on the failure of supervision and oversight when hiring

or disciplining employees who engage in sexual offenses.48

n n n

The American University Law School runs a clearinghouse that announces litigation relating

to civil actions and awards in prison settings for sexual abuse. Visit http://www.wcl.american

.edu/nic/AnEndtoSilenceYearinNews2008.cfm.

n n n

The tragic violence of rape and aggravated sexual assault will, can, and does occur in

any social, commercial, or business setting.49

The Model Penal Code’s sample statute is outlined as follows:

(1) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if:

(a) he compels her to submit by force or by threat of imminent death, serious bodily

injury, extreme pain or kidnapping, to be inflicted on anyone; or

(b) he has substantially impaired her power to appraise or control her conduct by

administering or employing without her knowledge drugs, intoxicants, or other

means for the purpose of preventing resistance; or

(d) the female is less than ten (10) years old.50

While the Model Penal Code lays out the generic elements of sexual offenses, since

the 1970s we have witnessed extraordinary efforts to either reform or expand statutory

coverage. Proponents of rape law reform have successfully created sexual offense legis-

lation that is gender neutral, that does not require a traditional vaginal and penal con-

tact, and does not weigh the substantiality of victim resistance.51

In business and commercial settings, cases of indecent assault or indecent exposure

are not atypical. A representative statute from Pennsylvania covers the standard language:

Indecent assault. A person who has indecent contact with another not his spouse, or

causes such other to have indecent contact with him is guilty of indecent assault, a

misdemeanor of the second degree, if:

(1) the person does so without the complainant’s consent;

(2) the complainant is unconscious or the person knows that the complainant is

unaware that the indecent contact is occurring;

(3) the complainant suffers from a mental disability which renders the complainant

incapable of consent;52

Indecent exposure.

(a) OFFENSE DEFINED—A person commits indecent exposure if that person

exposes his or her genitals in any public place or in any place where there are

present other persons under circumstances in which he or she knows or should

know that this conduct is likely to offend, affront or alarm.

234 PRIVATE SECURITY AND THE LAW

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FIGURE 6.3 Checklist of State Criminal Laws Prohibiting the Sexual Abuse of Persons in Custody.

(Continued)

C h a p ter

6 • C o lle

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(b) GRADING—If the person knows or should have known that any of the persons

present are less than 16 years of age, indecent exposure under subsection (a) is a

misdemeanor of the first degree. Otherwise, indecent exposure under subsection

(a) is a misdemeanor of the second degree.53

Security companies charged with these types of investigations must memorialize

complaints in document form. See Figure 6.4.54 Cases of sexual harassment are unfortu-

nately recurring phenomena for security advisors and consultants. To ferret out the

ruses from the legitimate cases of sexual harassment, employ the evaluation checklist

shown in Figure 6.5.55

FIGURE 6.4 Sexual Harassment Complaint Form.

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FIGURE 6.5 Sexual Harassment Evaluation Checklist.

(Continued)

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Offenses against the Habitation and Other Buildings

The security industry is entrusted with the protection of homes, business and commer-

cial buildings, and residential settings. Whether by direct patrol or technological surveil-

lance, the industry is increasingly controlling the safety of private residences and

business settings.56

Arson Industrial and business concerns have a grave interest in the protection of their assets

and real property from arsonists.57 Around-the-clock security systems, surveillance sys-

tems, and electronic technology have done much to aid private enterprise in the protec-

tion of its interests.58

Arson, as defined in the Model Penal Code, includes the following provisions:

Arson. A person is guilty of arson, a felony of the second degree, if he starts a fire or

causes an explosion with the purpose of:

(a) destroying a building or occupied structure of another; or

(b) destroying or damaging any property, whether his own or another’s, to collect

insurance for such loss.59

Judicial interpretation of arson statutes has been primarily concerned with either the

definition of a “structure” or in the proof an actual burning or physical fire damage.

Structure has been broadly defined as any physical plant, warehouse, or accommoda-

tion that permits the carrying on of business or the temporary residents of persons, a

domicile, and even ships, trailers, sleeping cars, airplanes, and other movable vehicles

or structures.60 Any burning, substantial smoke discoloration and damage, charring,

the existence of alligator burn patterns, destruction and damage caused as the results

of explosives, detonation devices, and ruination by substantial heat meets the arson cri-

teria. Total destruction or annihilation is not required.61

Most jurisdictions have also adopted related offenses:

• Reckless burning or exploding

• Causing or risking a catastrophe

FIGURE 6.5—Cont’d

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• Failure to prevent a catastrophe

• Criminal mischief

• Injuring or tampering with fire apparatus, hydrants, etc.

• Unauthorized use or opening of a fire hydrant

• Institutional vandalism62

n n n

Find out about efforts of the Department of Homeland Security (DHS) and other federal

agencies to thwart arson attempts at churches and synagogues at http://www.usfa.dhs.gov/

downloads/pdf/publications/napi1.pdf.

n n n

Proving a case of arson can be made easier with Figure 6.6.63

Burglary Of major interest to the security industry is the crime of burglary, a crime whose feloni-

ous intent requires an illegal entry into a domicile or other structure for the purpose of

committing any felony therein. Clark and Marshall’s Treatise on Crimes,64 provides the

common law definition of the crime of burglary:

1. The premises must be the dwelling house of another . . .

2. There must be a breaking of some part of the house itself. The breaking must be

constructive, as well as actual.

3. There must be an entry. The slightest entry of a hand or even an instrument suffices.

4. The breaking and entering must both be at night; but need not be on the same

night.

5. There must be an intent to commit a felony in the house and such intent must

accompany both the breaking and entry. The intended felony need not be

committed.65

Statutory modification of these elements has been quite common. A definition of a

dwelling house has been liberally construed and includes a chicken coop, a cow stable,

a hog house, a barn, a smokehouse, a mill house, and any other area or any other build-

ing or occupied structure.66 The term “breaking” does not require an actual destruction

of property, merely the breaking of a plane or point of entrance into the occupied struc-

ture.67 Additionally, most jurisdictions have reassessed the nighttime determination and

made the requirement nonmandatory, though they make the time of the intrusion appli-

cable to the gradation of the offense.68

Security operatives should, as in all other forms of criminality, take steps to prevent

burglaries. See the checklist at Figure 6.7.69

Be aware that burglary is not necessarily motivated by a property offense. Appellate

decisions continually instruct that burglary’s requirement of entry be spurred on by an

intent to commit any felony.70 The benchmark question then becomes, what was the

intent of the accused at the precise time of his actual breaking and entry?71

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FIGURE 6.6 Total Fire Inspection Report.

(Continued)

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FIGURE 6.7 Burglary Prevention Checklist.

(Continued)

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A related act that has applicability to the security environment is criminal trespass:72

Trespass

(1) Buildings and occupied structures. A person commits an offense if, knowing he is

not licensed or privileged to do so, he enters or surreptitiously remains in any

building or occupied structure or separately secured or occupied portion thereof.

An offense under this Subsection is a misdemeanor if it is committed in a

dwelling at night. Otherwise, it is a petty misdemeanor.73

To minimize burglary and trespass activity, adopt the policy considerations shown in

Figure 6.874 when conducting a facility review.

FIGURE 6.8 Hazardous Conditions Requiring Special Attention.

(Continued)

FIGURE 6.7—Cont’d

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FIGURE 6.8—Cont’dNemeth, C. (2011). Private security and the law. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from apus on 2020-10-13 13:20:29.

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Robbery The unlawful acquisition or taking of property by forceful means constitutes a robbery.75

In retail and commercial establishments, security officers and personnel are frequently

endangered by the activities of felons. Robbery is more than a property crime since it

is coupled with a violent thrust. The exact provisions of a general robbery statute

include those outlined in the Model Penal Code provision:

(1) Robbery Defined. A person is guilty of robbery if, in the course of committing a

theft, he:

(a) inflicts serious bodily injury upon another; or

(b) threatens another with or purposely puts him in fear of immediate serious

bodily injury; or

degree.

An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to

commit theft or in flight after the attempt or commission.76

Distinguishing robbery from a larceny or a theft offense is not a difficult task since

both judicial interpretation and statutory definitions insist on a finding of force, vio-

lence, or a physical threat of imminent harm. Robbery can be accomplished by threats

only if the threats are of death or of great bodily injury to the victim, a member of the

victim’s family or some other relative of the victim, or someone in the victim’s presence.

Threats to damage property will not suffice, with the possible exception of a threat to

destroy a dwelling house.77 Considerations relevant to a finding of guilt in a robbery case

include whether or not the victim was actually threatened with immediate harm;

whether the force or violence exerted created substantial fear or simple apprehension

in the robbery victim;78 and whether the statutory guidelines demand that the victim

be present when the unlawful taking occurs.79

Theft or Larceny No other area of proscribed behavior affects the security practice as much as in the

crime of theft or, as it was once known at common law, larceny.80 Shoplifting is a form

of larceny and has become retail security’s central concern as it seeks to devise loss pre-

vention strategies.81

n n n

Visit and evaluate worldwide data on the scourge of property theft in the retail world at

http://www.globalretailtheftbarometer.com/pdf/grtb-2010-summary.pdf.

n n n

Stock pilferage, fraudulent accounting and record-keeping systems, embezzling of

corporate funds, and theft of benefits and services are all criminal behaviors that

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significantly influence the profitable nature of business and industry. In the broadest

definitional terms, larceny consists of the following characteristics:

• A taking that is unlawful

• A carrying away or movement thereafter of personal property

• Property of which the taker is not in rightful ownership or possession

• With a mens rea that is felonious

Table 6.1 outlines the requisite elements needed for a successful charge of larceny.82

Historical argument on what exactly could be the subject of a larceny is quite prolific,

from disputes about whether rabbits and fish are larcenable, or whether vegetables,

land, or the skins of deer could be the subject of theft.83 In contemporary legal parlance,

literally any type of property is potentially larcenable. Maryland delineates an extensive

list of property classifications, including the following:

(1) “Property” means anything of value.

(2) “Property” includes:

(i) real estate;

(ii) money;

(iii) a commercial instrument;

(iv) an admission or transportation ticket;

(v) a written instrument representing or embodying rights concerning anything of

value, or services, or anything otherwise of value to the owner;

(vi) a thing growing on, affixed to, or found on land, or that is part of or affixed to

any building;

(vii) electricity, gas, and water;

(viii) a bird, animal, or fish that ordinarily is kept in a state of confinement;

(ix) food or drink;

(x) a sample, culture, microorganism, or specimen;

(xi) a record, recording, document, blueprint, drawing, map, or a whole or partial

copy, description, photograph, prototype, or model of any of them;

(xii) an article, material, device, substance, or a whole or partial copy, description,

photograph, prototype, or model of any of them that represents evidence of,

reflects, or records a secret:

1. scientific, technical, merchandising, production, or management

information; or

2. designed process, procedure, formula, invention, trade secret, or improvement;

(xiii) a financial instrument; and

(xiv) information, electronically produced data, and a computer software or

program in a form readable by machine or individual.84

Aside from the requisite form, the fact finder must then consider if the claim or right

of a possessor of property for larceny is an infringement on that right to possess. One

need not own property to suffer a larceny, but one needs to be its rightful and privileged

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Table 6.1 Elements of Larceny

I. Trespassory Taking §12.06

II. Asportation §12.05

III. Personal Goods §12.01

IV. Of Another §12.01

V. Felonious Intent §12.04

A. Trespass de bonis asportatis

is the type of taking

required—at least under

such circumstances as

amount technically to a

trespass.

B. From actual or constructive

possession of owner.

C. Without owner’s consent.

D. The taking may be by means

of nonhuman agency, inno-

cent human agent, or by

hands of the thief or thieves.

E. Taking by violence from the

person of another trans-

forms this offense into

robbery.

F. Some carrying away of the

property.

G. There is sufficient asportation if

the property (III) be entirely

removed from the place it occu-

pied so that it comes under the

dominion and control of the tres-

passer though only for an instant.

H. Personal property

only; real property

excluded.

I. Must be a thing

that is recognized

in law as being

property and the

subject of

ownership.

Of some value, though

slight value to

owner will suffice.

J. Special property

in another is

sufficient even

against a gen-

eral owner.

(1) Mere pos-

session is

enough as

against

others than

the owner.

See }12.03.

K. Animus furandi must exist

both in the taking (I) and the

carrying away (II).

(1) Intent to deprive the

owner permanently of

his property in the good,

or of its value or part of

its value, viz., an intent to

steal.

(2) There must be a fraudu-

lent intent and not a

mistake or bona fide

claim of right.

L. There is minority authority

requiring that the taking

shall be lucri causa—for the

sake of gain.

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possessor. Finally, the taking of said property must not arise from violence or force, for

to take in that fashion would call for a robbery charge over that of larceny.

The Model Penal Code’s provision on theft is fairly straightforward:

Theft by Unlawful Taking or Disposition.

(1) Moveable Property. A person is guilty of theft if he takes, or exercises

unlawful control over, moveable property of another with purpose to deprive

him thereof.

(2) Immovable Property. A person is guilty of theft if he unlawfully transfers

immovable property of another or any interest therein with the purpose to

benefit himself or another not entitled thereto.85

Security professionals should formally record any allegations of lost or stolen property in

a report format. See Figure 6.9.86

Given the diversity of property forms and the new and emerging means of taking

things or items of value, traditional larceny definitions fail to encompass these many

forms. Commentators at the American Law Institute have long advanced the need to

consolidate these diverse thefts under one codified heading. The larceny should now

be labeled theft, and distinct provisions of theft will be divided up by other variables

such as value of property, type and form of property, and tangible or intangible design.

The call here is for consolidation of the myriad of theft offenses under one roof while

allowing distinct elements to remain. As a result, “the general definition of theft conso-

lidates into a single offense a number of heretofore distinct property crimes, including

larceny, embezzlement, obtaining by false pretense, cheat, extortion and all other invol-

untary transfers of wealth except those explicitly excluded by provisions of this article.”87

Therefore, security personnel must be concerned about the closely aligned theft

provisions and correctly evaluate the facts to see the applicability of certain offenses.

A summary review follows.

THEFT BY DECEPTION88/FALSE PRETENSES

Be aware of individuals who are best described as “flim-flam” artists who create false

impressions and deceive others into giving up their rightful possession of property.89

In the case of false pretense, the criminal actor deceptively attains ownership in a deed,

a stock certificate, an auto title, or other form of property interest evidenced by a legal

document.90

THEFT BY EXTORTION91

Theft’s methods may employ threats that are futuristic in design. Future threats of bodily

injury or even by words disclosing private matters or secrets that will cause serious

injury to a party are common artifices employed by those seeking funds illegally.92 When

public officials refuse to cooperate in an official capacity or threaten to cause harm or

injury without justification unless they receive a kickback or other payback, this falls

under the theft-by-extortion umbrella.

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FIGURE 6.9 Report of Lost/Stolen Property.

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THEFT OF PROPERTY LOST, MISLAID, OR DELIVERED BY MISTAKE93

Security personnel must be particularly concerned about employees in retail establish-

ments or other business concerns who have access to lost and found property depart-

ments, or who take advantage of incorrectly delivered warehouse shipments.

RECEIVING STOLEN PROPERTY94

One often-discovered activity, especially in retail circles, is an internal network of illegal

goods and services flowing either from employee to employee or from employee to

third-party outsiders.

THEFT OF SERVICES95

Cable companies, electric utilities, hotels, motels, and other tourist facilities are subject to

thieving scams as are rental car companies, entertainment venues, and telephone compa-

nies. At common law theft had tobeof a tangible item. Services lacked that corporeal quality.

Modern statutes incorporate services into their definitions because they are things of value.

RETAIL THEFT96

Considering the rampant onslaught of shoplifting cases in the judicial system and the

need for specialized statutory designs that recognize the many demands that business

labors under as its seeks to prevent the activity, retail theft is a major concern for private

security policymakers. Modern retail theft statutes are distinctively less draconian in

punishment. In addition, most provide some sort of immunity in the form of merchant’s

privilege or other protection. Some statutes permit and even promote alternative diver-

sion or disposition of said cases. A typical construction might be as follows:

(a) OFFENSE DEFINED—A person is guilty of a retail theft if he:

(1) takes possession of, carries away, transfers or causes to be carried away or

transferred, any merchandise displayed, held, stored or offered for sale by any

store or other retail mercantile establishment with the intention of depriving the

merchant of the possession, use or benefit of such merchandise without paying

the full retail value thereof;

(2) alters, transfers or removes any label, price tag marking, indicia of value or any

other markings which aid in determining value affixed to any merchandise

displayed, held, stored or offered for sale in a store or other retail mercantile

establishment and attempts to purchase such merchandise personally or in

consort with another at less than the full retail value with the intention of

depriving the merchant of the full retail value of such merchandise;

(3) transfers any merchandise displayed, held, stored or offered for sale by any store

or other retail mercantile establishment from the container in or on which the

same shall be displayed to any other container with intent to deprive the

merchant of all or some part of the full retail value thereof; or

(4) under-rings with the intention of depriving the merchant of the full retail value

of the merchandise.

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(5) destroys, removes, renders inoperative or deactivates any inventory control tag,

security strip or any other mechanism designed or employed to prevent an

offense under this section with the intention of depriving the merchant of the

possession, use or benefit of such merchandise without paying the full retail

value thereof.97

The economic impact of retail theft is incredibly high.98 Economic crime impacts society

in many direct and indirect ways:

BUSINESS

• increased costs of insurance and security protection;

• costs of internal audit activities to detect crime;

• cost of investigation and prosecution of suspects measured in terms of lost time of

security and management personnel;

• reduced profits;

• increased selling prices and weakened competitive standing;

• loss of productivity;

• loss of business reputation;

• deterioration in quality of service;

• threats to the survival of small business.

LOCAL GOVERNMENT

• costs of investigation and prosecution of suspects;

• increased costs of prosecuting sophisticated (e.g., embezzlement) and technology-

related (e.g., computer) crime;

• costs of correctional programs to deal with economic crime offenders;

• cost of crime prevention programs;

• cost of crime reporting and mandated security programs;

• loss of tax revenue (e.g., loss of sales tax, untaxed income of perpetrator, and tax

deductions allowed business for crime-related losses).

THE PUBLIC

• increased costs of consumer goods and services to offset crime losses;

• loss of investor equity;

• increased taxes;

• reduced employment due to business failures.99

Employ the shoplifting checklist shown in Figure 6.10100 when conducting an investi-

gation.

The appearance of shoplifters has given way to some creative programs of civil recov-

ery. The retailer, instead of formally prosecuting the shoplifter, bills him or her to recover

the proceeds of the theft:

Thirty-eight states now permit civil recovery, according to R. Reed Hayes Jr., presi-

dent, L P Specialists, Winter Park, Fla. Hayes, a pioneer in civil recovery who has

watched the technique blossom after its 1973 Nevada start.

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Typically, the business gives notice to a person by mail, asking for payment for money

owed. If the person neglects a certain number of notices, civil action is initiated. More

often, the person pays the money owed in one lump sum or in payments.101

n n n

An example of a firm that specializes in the tactics of civil recovery is at http://www

.lpinnovations.com/page/83-civil_recovery.

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RELATED PROPERTY OFFENSES: FRAUDULENT BEHAVIOR

The illegal acquisition of property may take place under fraudulent or deceptive circum-

stances. Criminals are inventive creatures who employ devious tactics and techniques to

secure property not rightfully theirs to possess. If property cannot be taken outright,

then the devious felon will invent a new technique, a new design to fraudulently acquire

some property or interest.102

Problems with fraud trickle throughout the entire economic and business system,

whether auto, homes, stocks, bonds and commercial paper, or intellectual property.

At times, fraud activities seem insurmountable, but some are banding together to do

something about it. The National Insurance Crime Bureau is one such entity. “[A] new

agency—amerger of the National Automobile Theft Bureau and the Insurance Crime Pre-

vention Institute—employs a national network of 165 investigators who help law enforce-

ment prosecute insurance fraud perpetrators.”103 For information, call 1-800-TEL-NICB.

Another resource center on fraud detection to contact is:

National Fraud Information Center/National Consumer’s League

Fraud hotline: 1-800-876-7060, or file an online complaint at www.fraud.org

FIGURE 6.10 Shoplifting Investigation Checklist.

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1701 K Street, N.W., Suite 1200

Washington, D.C. 20006

Phone: 202-835-3323

Fax: 202-835-0747

www.nclnet.org

In the case of insurance fraud contact:

Coalition against Insurance Fraud

1012 14th Street, NW, Suite 200

Washington, D.C. 20005

Phone: 202-393-7330

Fax: 202-393-7329

[email protected]

www.insurancefraud.org

Fraudulent behavior, aside from its potential criminal behavior, may also trigger

various sorts of civil liability.

Forgery Property takings may be by simulation, forgery, or other deception. Individuals who create

false documentation, false writings, or forged stamps, seals, trademarks, or other symbols

of value, right, privilege, or identification may be subject to charges of forgery.104 A com-

mon example of criminal forgery involves tampering with wills, deeds, contracts, com-

mercial instruments, negotiable bonds, securities, or any other writing that influences,

executes, authenticates, or issues something of monetary value. To constitute forgery,

a fraudulent intent is always essential. There must not only be a false making of an

instrument, but it must be with intent to defraud:105

715A.2 Forgery.

1. A person is guilty of forgery if, with intent to defraud or injure anyone, or with

knowledge that the person is facilitating a fraud or injury to be perpetrated by

anyone, the person does any of the following:

a. Alters a writing of another without the other’s permission.

b. Makes, completes, executes, authenticates, issues, or transfers a writing so that

it purports to be the act of another who did not authorize that act, or so that it

purports to have been executed at a time or place or in a numbered sequence

other than was in fact the case, or so that it purports to be a copy of an original

when no such original existed.

c. Utters a writing which the person knows to be forged in a manner specified in

paragraph “a” or “b”.

d. Possesses a writing which the person knows to be forged in a manner specified

in paragraph “a” or “b”.106

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SIMULATING OBJECTS OF ANTIQUITY OR RARITY

Security officials given the responsibility of protecting museum collections, art centers,

or other nonprofit institutions dedicated to articles of antiquity or rarity should always

be aware of possible reproduction or simulation of their employer’s collections:

Simulating objects of antiquity, rarity, etc.

A person commits a misdemeanor of the first degree if, with intent to defraud any-

one or with knowledge that he is facilitating a fraud to be perpetrated by anyone, he

makes, alters or utters any object so that it appears to have value because of antiq-

uity, rarity, source, or authorship which it does not possess.107

FRAUDULENT DESTRUCTION, REMOVAL, OR CONCEALMENT OF RECORDABLE

INSTRUMENTS OR THEIR TAMPERING

Internal security, particularly in the area of personnel, payroll, and administrative mat-

ters, should give substantial thought to the preventative security measures that are pres-

ently in place or should be implemented:

}4103. Fraudulent destruction, removal or concealment of recordable instruments A person commits a felony of the third degree if, with intent to deceive or injure

anyone, he destroys, removes or conceals any will, deed, mortgage, security

instrument or other writing for which the law provides public recording.

}4104. Tampering with records or identification (a) Writings—A person commits a misdemeanor of the first degree if, knowing that

he has no privilege to do so, he falsifies, destroys, removes or conceals any writing

or record, or distinguishing mark or brand or other identification with intent to

deceive or injure anyone or to conceal any wrongdoing.108

BAD CHECK AND CREDIT CARD VIOLATIONS

Retail centers are regularly victimized by check and credit card fraud and related viola-

tions. Here too property is acquired without the proper payment of consideration. The

seemingly endless stream of fraudulent and bounced checks received by commercial

establishments is mind-boggling. The security industry must adopt an aggressive pos-

ture against these actors in order to protect pricing and value in the exchange of goods

and services. Bad checks and credit card fraud drive up the prices. The language of bad

check laws is fairly uniform.

}4105. Bad checks

(a) OFFENSE DEFINED—

(1) A person commits an offense if he issues or passes a check or similar sight order for

the payment of money, knowing that it will not be honored by the drawee.

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(2) A person commits an offense if he, knowing that it will not be honored by the

drawee, issues or passes a check or similar sight order for the payment of money

when the drawee is locatedwithin this Commonwealth. Aviolation of this paragraph

shall occur without regard to whether the location of the issuance or passing of the

check or similar sight order is within or outside of this Commonwealth. It shall be no

defense to a violation of this section that some or all of the acts constituting the

offense occurred outside of this Commonwealth.

}4106. Access device fraud

(a) OFFENSE DEFINED—A person commits an offense if he:

(1) uses an access device to obtain or in an attempt to obtain property or services

with knowledge that:

(i) the access device is counterfeit, altered or incomplete;

(ii) the access device was issued to another person who has not authorized

its use;

(iii) the access device has been revoked or canceled; or

(iv) for any other reason his use of the access device is unauthorized by the

issuer or the device holder; or

(2) publishes, makes, sells, gives, or otherwise transfers to another, or offers

or advertises, or aids and abets any other person to use an access device

knowing that the access device is counterfeit, altered or incomplete, belongs

to another person who has not authorized its use, has been revoked or

canceled or for any reason is unauthorized by the issuer or the device

holder; or

(3) possesses an access device knowing that it is counterfeit, altered, incomplete or

belongs to another person who has not authorized its possession.109

n n n

Review the criminal penalties for bad checks at http://www.ckfraud.org/penalties.html#

criminal.

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Offenses against Public Order and Decency

Maintenance of public order is a public police function that has been increasingly trans-

ferred to the private sector.110 Not surprisingly, security personnel have recently come

up against troubled and volatile conditions experienced by the police in the mid-

1960s, namely, riotous situations, disorderly persons, extreme disorderly conduct,

harassment, public drunkenness, and other obstructive activities. As this transference

of public control functions continues unabated, an understanding of the relevant

statutes is imperative.

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Riot A person is guilty of riot, a felony of the third degree, if he participates with two or more

others in a course of disorderly conduct:

(1) with intent to commit or facilitate the commission of a felony or misdemeanor;

(2) with intent to prevent or coerce official action; or

(3) when the actor or any other participant to the knowledge of the actor uses or plans

to use a firearm or other deadly weapon.111

Other provisions relating to public obstruction, trespass, and resisting arrest are close

companions to crowd control. Pennsylvania and other jurisdictions have drafted aligned

provisions dealing with similar situations such as the following:

}5104. Resisting arrest or other law enforcement A person commits a misdemeanor of the second degree if, with the intent of

preventing a public servant from effecting a lawful arrest or discharging any other

duty, the person creates a substantial risk of bodily injury to the public servant or

anyone else, or employs means justifying or requiring substantial force to overcome

the resistance.112

}5507. Obstructing highways and other public passages (a) Obstructing—A person, who, having no legal privilege to do so, intentionally or

recklessly obstructs any highway, railroad track or public utility right-of-way,

sidewalk, navigable waters, other public passage, whether alone or with others,

commits a summary offense, or, in case he persists after warning by a law officer, a

misdemeanor of the third degree. No person shall be deemed guilty of an offense

under this subsection solely because of a gathering of persons to hear him speak or

otherwise communicate, or solely because of being amember of such a gathering.113

}7506. Violation of rules regarding conduct on Commonwealth property114

}5502. Failure of disorderly persons to disperse upon official order Where three or more persons are participating in a course of disorderly conduct

which causes or may reasonably be expected to cause substantial harm or serious

inconvenience, annoyance or alarm, a peace officer or other public servant engaged

in executing or enforcing the law may order the participants and others in the

immediate vicinity to disperse. A person who refuses or knowingly fails to obey such

an order commits a misdemeanor of the second degree.115

Handling the disruptive, the loud, and the fighters requires a charge of disorderly

conduct:

}5503. Disorderly conduct (a) OFFENSE DEFINED—A person is guilty of disorderly conduct if, with intent to

cause public inconvenience, annoyance or alarm, or recklessly creating a risk

thereof, he:

(1) engages in fighting or threatening, or in violent or tumultuousbehavior;

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(2) makes unreasonable noise;

(3) uses obscene language, or makes an obscene gesture; or

(4) creates a hazardous or physically offensive condition by any act which serves

no legitimate purpose of the actor.116

What is the likelihood of being arrested for using obscene language?

Public Drunkenness A person is guilty of a summary offense if he appears in any public place manifestly

under the influence of alcohol or a controlled substance, to the degree that he may

endanger himself or other persons or property or annoy persons in his vicinity.117

Ohio law defines voluntary intoxication in more specific terms, stating that a viola-

tion of the disorderly conduct statute for public intoxication will only occur if the person

is engaging in conduct “likely to be offensive or to cause inconvenience, annoyance, or

alarm to persons of ordinary sensibilities.”118

Other Public Order Provisions Loitering,119 obstruction of highways and other public places,120 disrupting lawful meet-

ings or processions,121 desecration, theft or sale of venerated objects,122 and vagrancy123

are related public offenses of interest to the security professional. When one considers

the homeless figures on the nation’s streets, does vagrancy seem an enforceable statute?

Ponder Wisconsin’s vagrancy language:

947.02. Vagrancy.

Any of the following are vagrants and are guilty of a Class C misdemeanor:

(1) A person, with the physical ability to work, who is without lawful means of

support and does not seek employment; or . . .

(2) A prostitute who loiters on the streets or in a place where intoxicating liquors

are sold, or a person who, in public, solicits another to commit a crime

against sexual morality; or

(3) A person known to be a professional gambler or known as a frequenter of

gambling places or who derives part of his or her support from begging or as

a fortune teller or similar impostor.124

Critics of vagrancy statutes comment on the imprecision and vagaries of language

employed. Civil libertarians bristle at language that seeks to measure whether a person

looks employed or not, or whether one appears not to have a livelihood. Is it better that

vagrants and other undesirables simply lay on the streets? Or does it make sense to

round up the displaced for social service processing? Tension exists between those

who urge decriminalization of the homeless or vagrancy statutes and those who see

the loitering as a nuisance and a trespass. As the public police system further transfers

public order functions, private security will have to increasingly deal with these sorts

of social pathology.

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Evidence and Proof

Detecting crime and implementing steps that halt its spread are major vocational issues

for the security profession. To do so, the security industry must process criminals with

procedural and evidentiary rigor. While not held accountable under the public police

standard, it is salient for security specialists to carry out their task and mission with pro-

fessional demeanor. Unfortunately, private security has sometimes taken the law into its

own hands, attempting to perform criminal investigations that will generate questions of

admissibility. Far too often, private security has displayed scant care about the implica-

tions of evidence collection. To be certain, private security has always taken an active

interest in the collection and preservation of evidence since it is so often on the front

lines of first response. That same interest must extend to eventual trial or other liti-

gation. As a result, security personnel must master the dominant themes in evidence

law and practice.

The Chain of Custody Evidence acquired at the scene of a crime or other location that the prosecution seeks to

admit will always be challenged on chain of custody theory.125 Evidence that is acquired

in any investigation should be properly tagged and packaged with precautions to thor-

oughly preserve content and structural integrity.126 In other words, the defense will

question whether the evidence, as acquired on the date of the investigation, compares

in composition and nature as it did on the date it was offered for admission. Any change,

corruption, or other alteration imputes a faulty and flawed chain. The evidence will be

suspect and likely denied admission. Evidence that lacks a chronological tag or docu-

mentary history will be challenged. John Waltz, in his text Criminal Evidence, reminds

practitioners:

Tracing an unbroken chain of custody can hold crucial to the effective use of a fire-

arm’s identification evidence. This does not mean, however, that changes in the con-

ditions of firearm’s evidence or the passage of a substantial period of time between

the shooting and the recovery of the firearm’s evidence will foreclose admissibility at

trial. . . . Of course it is important that, to the extent possible, all law enforcement

agencies provide for the safe storage of vital evidence prior to trial. Police depart-

ments are well advised to maintain a locked evidence room manned by an officer

who keeps detailed records not only of its contents but of the disposition of items

of evidence and the names of persons entering the room for any purposes.127

The image of a chain is most appropriate since any break in a series of links on a

chain destroys the chain.128 By analogy, real evidence with a checkered history, whether

as to location or packaging, loses its credibility. For this reason, the proponent of real

evidence must establish that the condition of the real evidence being offered has

remained basically unchanged since the date of acquisition, and that it has neither been

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tampered with nor suffered any damage. Opposing counsel challenging the quality and

integrity of real evidence might argue that the evidence is contaminated or lacks a reli-

able historical record assuring its pristine and untouched condition.129

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The Environmental Protection Agency delivers an entire course on chain of custody issues at

http://www.epa.gov/apti/coc.

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A security department would be well advised to heed the same advice—that chrono-

logical tracking is essential upon initial acquisition of evidence and that a cooperative

plan for transference of evidentiary matter to police departments and other justice agen-

cies be instituted. Evidence tags are inexpensive, reliable ways of tracing an evidence

chain. An evidence log is equally helpful. See Figure 6.11 for an example.

FIGURE 6.11 Prosecutor’s Office Evidence Log.

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Destruction or even partial corruption of evidence taints and undermines the proof.

Documents, physical evidence, forensic materials, and other forms of evidence used by

both the prosecution and the defense will only be able to withstand legal challenges if

not subject to integrity challenges. While each party may employ the evidence for its

case in chief, the question of whether said evidence finds a willing tribunal will largely

depend on the proof of how it has been handled and processed. The chain of custody

requirements assure that the history of that evidence is both traceable and verifiable.130

Destruction of evidence will also make discovery of said evidence, a compulsory grant

by prosecution to defense, even more difficult, for that evidence is untrustworthy. The

exercise of procedural examination can be frustrated if relevant material is altered, con-

cealed, or destroyed.131 Destruction may also trigger constitutional violation when the

agent who ruined the evidence did so with malice, fraud, or some other intentional pur-

pose. Whether by case law or statute, destroying evidence in all circumstances is a pro-

hibited act.132

n n n

Visit an evidence company to review the many products available to assure the integrity of

evidence at http://www.sirchie.com.

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The Admission of Business Records Business records are inherently hearsay, since the author of that record is not readily

available to testify. Hearsay is inadmissible unless an exception has been fashioned. As

is so often the case, especially in large corporate enterprises, record keeping is so volu-

minous and broad based that it is difficult to tie authorship to any given document. The

Federal Rules of Evidence fully recognize that business records themselves, while admit-

tedly hearsay, are admissible. Federal Rule 803(6) provides:

A memorandum, report, record, or data compilation, in any form, of acts, events,

conditions, opinions, or diagnoses, made at or near the time by, or from informa-

tion transmitted by, a person with knowledge, if kept in the course of a regularly

conducted business activity, and if it was the regular practice of that business activ-

ity to make the memorandum, report, record, or data compilation, all as shown by

the testimony of the custodian or other qualified witness, unless the source of infor-

mation or the method or circumstances of preparation indicate lack of trustworthi-

ness. The term “business” as used in this paragraph includes business, institution,

association, profession, occupation, and calling of every kind, whether or not con-

ducted for profit.133

Records, in order to be regularly admissible and outside the hearsay criterion, must

be regularly kept. A presumption exists in the law that regularly kept records, automati-

cally filled-in forms, and other autonomic exercises decrease the likelihood of deception

and fraud in authorship.134 For the most part, security record keeping, like surveillance

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reports, warehouse bills of lading, visitors’ logs, shoplifting reports, and investigative

task sheets, are robotic business records135 that will be admitted despite their hearsay

content.

Thus, business records will not be admitted in any subsequent litigation except

under the following conditions:

• The record was made at or near the time of the occurrence.

• It was the regular practice of the business to make such records.

• There are no indications of untrustworthiness in the record.

• The information in the record was made by, or with information from, a

knowledgeable person.

• The record was made and kept in the normal course of a business.136

Real and Demonstrative Evidence As the name implies, real or physical evidence is of a tangible form—something

that can be felt, touched, sensed, and seen. Real evidence is the gun, the knife, the

blood, and other actual composition.137 Real evidence is the actual product, not a

reproduction or a copy. It may be the actual weapon, forged check or deed, or other

physical matter. In most litigation, there is a preference for the real over other eviden-

tiary forms:

As the trier of fact looks for the truth, what form of evidence is most convincing dur-

ing its deliberations? Is the testimony of expert or lay witnesses regarding impres-

sions and eyewitness accounts as persuasive as evidence in real format? Is the

testimony of the plaintiff in a civil negligence case regarding experienced pain

and suffering more probative than the actual exhibition of injuries inflicted in

the plaintiff ’s body?138

While there may be some variety in responses based on the quality of the real and the

illustrative and educational quality of secondary evidence forms, there is little doubt

that the real evidence form can be compelling.

Comparatively, demonstrative evidence is an illustration of the real.139 Its admissibil-

ity and utility depends upon these criteria:

Does it aid the trier of fact in discerning the truth? Does it simplify complex pro-

blems? Does it educate the jury and tribunal? Is it persuasive? Does the demonstra-

tion appeal to multiple senses?140

Common forms of demonstrative evidence include the following:

• Maps

• Models

• Photographs

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• Videotapes

• Animation Graphics

• Experiments and Simulations • Movies

• Charts

• Graphs

• Reproductions

• Scale Models

• Multiple Views

• Cast Models

• Sound Recordings

• Artistic Reproductions

• X-Rays

• Thermographs

• Spectrograms

• Medical Test Results

• Chemical Analysis141

Security personnel are increasingly relying on animation and other graphics por-

trayals142 to reconstruct a case during the investigative phase. Some of the more com-

monly used providers in the area are the following:

The Association of Medical Illustrators

201 E. Main Street, Suite 1405

Lexington, Kentucky 40507

Phone: 1-866-393-4AMI (or 1-866-393-4264)

E-mail: [email protected]

http://www.ami.org

(for information on medical illustrators in your area)

Wolf Technical Services, Inc.

9855 Crosspoint Blvd., Suite 126

Indianapolis, Indiana 46256-3336

Main: 317-842-6075

Toll Free: 1-800-783-9653

Fax: 317-842-6974

http://www.wolftechnical.com/

(accident reconstruction and forensic engineering)

ARCCA Incorporated

2288 Second Street Pike

Penns Park, Pennsylvania 18943

Phone: 215-598-9750

Toll Free: 1-800-700-4944

Fax: 215-598-9751

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http://www.arcca.com

(illustrations and charts of crash simulations)

n n n

Visit one of the country’s largest developers of medical and injury demonstrative exhibits at

http://www.medicallegalexhibits.com.

n n n

Lay Witnesses As private security performs its investigatory functions, it must rely on evidence

provided by witnesses. The measure of witness competency will largely be determined

by whether the witness is lay or expert. A wise practice is to evaluate lay witnesses in

the field, since these very individuals, who are providing crucial information, may be

the best foundation on which a case rests. If incompetent in the field, they will clearly

be incompetent on the stand.143 By competency, we merely hold that the witness is

capable of relating facts and conditions in a reliable and dependable way.

Lay competency is generally defined by Rule 602 of the Federal Rules of Evidence as

follows:

(1) The witness has the capacity to actually perceive, record and recollect impressions

of fact (physical and mental capacity);

(2) The witness in fact did perceive, record and recollect impressions having a tendency

to establish a fact of consequence in the litigation (personal knowledge);

(3) Thewitness be capable of understanding theobligation to tell the trust (oathor affirmation);

(4) The witness possess the capacity to express himself understandably where

necessary with the aid of an interpreter.144

Competency does not require genius but the capacity to perceive, record, and recol-

lect impressions of fact as influenced by a wide assortment of social and biogenic fac-

tors.145 All lay witnesses, in order to be effective on the witness stand, need to be

evaluated in light of these criteria:

• What is their present age?

• Do they have any personal habits that would indicate their powers of recollection

and thought retention would be influenced by chemical or drug usage?

• From an observational point of view, do these individuals appear intellectually ordered?

• Would a street person, bag lady, or heroin abuser be a witness who could withstand

the competency standard?

• Did they have any personal knowledge of the events or is their viewpoint strictly the

product of hearsay?146

Certain witnesses—such as children, a spouse, a coconspirator who has been granted

immunity, or a person who has been adjudged insane—will trigger credibility concerns.147

Lack of credibility, however, does not disallow a witness from taking the stand.148

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Security practitioners should evaluate the levels of sincerity and credibility of any wit-

ness they interview during the investigative process. Employing simple human relations

skills will often permit the security professional to judge the quality and credibility of

any witness. When evaluating a witness, utilize the checklist presented in Figure 6.12.149

The security officer needs to evaluate and weigh not only the physical and real evi-

dence he or she collects but also the testimony from interested as well as disinterested

witnesses. Conduct the type of human observation that ferrets out the unreliable in

favor of the reliable lay witness. Make human judgments that work for the average per-

son, and avoid witnesses who are disgruntled individuals, abhorrent characters, and

courtroom groupies whose sole purpose in life is to meddle in the affairs of others.150

Expert Witnesses An expert is often defined as any witness who is not a lay witness. While it is a suitable

definition, the complexities of expert testimony call for more.151 It is now a given that

experts populate our courtroom in both the criminal and civil realm. It is also commonly

FIGURE 6.12 Witness Competency Checklist.

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agreed upon that there has been a proliferation of experts, expert testimony, and fields

of acceptable expertise once unenvisioned.152 These perceptions are the result of many

factors such as media coverage of flamboyant expert witnesses to celebrated and often

avant-garde litigation. However, the bulk of testimony given in any criminal or civil

action is fundamentally “lay” in nature. An expert is entitled to give an opinion, but only

in the context of his or her expertise, though a foundational test will have to be met

before such testimony is proffered. In the case of a lay witness, foundational require-

ments must be laid as follows:

• The witness’s testimony is based upon his or her own unique perception.

• The court is convinced that the testimony of the lay witness is helpful in arriving at

the truth.

• The witness does in actuality have an opinion.

• The witness is capable and competent to testify as to that opinion.

• Without the testimony the trier of fact, namely, the judge and jury, would not have

the best case presented.

• The witness is giving lay testimony rather than expert testimony.

• No opinion as to a rule or an interpretation of law will be permitted.153

Experts, on the other hand, must be qualified to testify in their areas of expertise.

Rule 703 of the Federal Rules of Evidence154 requires that an expert’s opinion rest on

facts, data, or other information that he or she has actually seen or heard or has been

communicated to the expert. Rule 704155 permits the expert witness to attest to the ulti-

mate issue of fact, though at one point in history the ultimate issue doctrine withheld

that right. By ultimate issue, the expert is giving his or her assessment on the fundamen-

tal guilt or innocence of the defendant or the truth or falsity of a given issue at trial.156

Security companies must learn to develop collegial and longstanding relationships

with experts in fields of mutual interest, such as engineering, hazardous materials, use

of force and professional police practices, product liability, negligence and intentional

tortious conduct. The occasion may arise whereby the security company needs the

assistance of an expert. Insist that the self-acclaimed expert prove his or her quali-

fications since the court will expect the scrutiny by reviewing these standardized

qualifications:

• The witness has specialized training in the field of his or her expertise.

• The witness has acquired advanced degrees from educational institutions.

• The witness has practiced in the field for a substantial period of time.

• The witness taught courses in a particular field.

• The witness has published books or articles in the particular field.

• The witness belongs to professional societies or organizations in a particular field.

• The witness has previously testified and been qualified as an expert before a court or

administrative body on a particular subject to which he or she is being asked to

render an opinion.157

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Practical Exercise: Cross-Examination Security operatives are frequently cross-examined on the witness stand.158 How would

you respond to the following queries:

1. “Your name and occupation, please?”

2. “So, you’re a real live Pinkerton detective. And who do you represent in this case?”

3. “In other words, you are being paid to testify for ABC Insurance Company against

my client, isn’t that correct?”

4. “Exactly how long did you conduct your spying in Mr. Smith’s home and how long

did you actually observe my client engaged in activity during this time?”

5. “So, for two (2) days you were paid to observe Mr. Smith for only a half hour. The

insurance company must have been disappointed.”

6. “You describe in your report the home of Mr. Smith and state that its approximate

value is $65,000. Are you qualified to make such a statement?”

7. “Just how far away were you when you took these movies of Mr. Smith and don’t you

consider taking these movies without his permission a shameful invasion of Mr.

Smith’s right to privacy?”

8. “You state in your report that Mr. Smith exhibited no sign of discomfort or pain

while moving about. Do you have a medical background that qualifies you to judge

whether or not Mr. Smith was experiencing pain?”

9. “I understand that your presence in Mr. Smith’s neighborhood created a great deal

of anxiety among his neighbors, that they were concerned for the safety of their

children with a stranger parked for two (2) days in their neighborhood with out-of-

state license plates. Do you think you have a right to frighten innocent people while

you are spying on my client for this big insurance company?”

10. “Do you get a percentage of any money the insurance company may save—Never

mind. No further questions.”159

There has been a proliferation of experts and consulting services in the security

industry itself. Review a recent classified section of any industry magazine and you will

find a plethora of ads for expert witness and consulting services. Assuring the integrity of

these or any other proposed expert is a problem, for the security industry and all other

areas of expertise.160 The International Association of Professional Security Consul-

tants161 is a member organization dedicated to assuring competency among its security

experts.

Use the following expert witness questionnaire when determining the qualifications

of an expert. See Figure 6.13.162 A contract for the expert services of a security specialist

lays out the professional expectations. See Figure 6.14.

A. Potpourri of Evidentiary Principles BURDEN OF PROOF

In criminal cases, the standard is beyond a reasonable doubt; in civil cases, the standard

is beyond a preponderance of the evidence or by clear and convincing evidence.163

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FIGURE 6.13 Expert Witness Questionnaire.

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FIGURE 6.14 Contract for Expert Services.

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QUESTIONS OF LAW VERSUS QUESTIONS OF FACT

A trial judge saddled with the question of law must decide the applicability of a case

decision, statute, or other regulation. A question of fact is an interpretation of events left

best to the jury or a judge evaluating the case before it.

THE BASIC TYPES OF EVIDENCE

Direct evidence Direct evidence is a type of evidence that “proves a fact proposition

directly rather than by inferential process.”164

Indirect or circumstantial evidence Circumstantial evidence relies on the inference that

can be deduced from a fact pattern presented. The bulk of evidence is circumstantial.165

THREE FORMS OF EVIDENCE

All evidence is further subcategorized into the following forms.

CASE EXAMPLES

THIRD-PARTY CRIMINAL ACTS—HATT V. HAMMOND, NO. 236637 (PIMA COUNTY

SUPERIOR COURT, TUCSON, ARIZONA, OCTOBER 20, 1987)

Facts

A 66-year-old retired man and his wife were assaulted at gunpoint by three men in their hotel

room. Plaintiffs sued the hotel for failing to provide adequate security. At the time of the incident,

the hotel was sponsoring a precious gem show. The hotel was accused of being negligent in

failing to provide additional security with this expensive property. The claim of inadequate

security was also based on the fact that the plaintiffs’ room was located in a building that was

detached from the hotel lobby and had six unguarded, unlocked exterior doors.

Issue

Is the hotel liable for failure to provide sufficient security?

THIRD-PARTY CRIMINAL ACTS

Facts

Upon returning to her apartment unit at 11 p.m., a 21-year-old woman locked the sliding glass

door, pulled the drapes, and immediately went to bed. Two hours later she was awakened by an

individual who, with brutal force, caused her to perform sexual acts against her will. She

brought suit against the owners and managers of the building complex, alleging that they had

knowledge that other specific criminal acts had taken place within the complex and that they

had negligently failed to take reasonable steps to protect their tenants. Plaintiff further alleged

that the defendants failed to warn tenants of these prior crimes, thus denying tenants the

opportunity to take increased self-protective measures.

Issue

Is this apartment complex negligent for the criminal acts of a third party?

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Testimonial evidence Evidence provided by oral testimony under oath or affirmation or,

on occasion, by sworn pretrial written deposition or interrogatory.166

Tangible evidence As discussed previously, tangible evidence is either the real evidence

the actual agency utilized in the criminal activity or, otherwise, demonstrative evidence

that is an illustrative tool in the form of a visual design, reproduction, diagram, or ana-

tomical model.167

Judicially noticed evidence Evidence that is generally and commonly known by the

community at large and that is scientifically acceptable in most circles can be judicially

noticed. The fact that the sun rises during a 24-hour cycle, at least in North America, is a

judicially noticed fact.168

Summary The chapter provides a broad overview of legal principles, definitions, and standards

relating to the laws of crime and evidence law. The coverage commenced with a review

of criminal liability. As private sector justice moves increasingly into public functions of

law enforcement, it will have to master the art and science of crimes and their

subsequent prosecutions. Even more pertinent is this chapter’s refined analysis of crim-

inal charges and actions. Criminal law is primarily codified, but in the focused, occupa-

tional realm of private security, certain actions more commonly occur: property crimes

such as theft and its parallel and companion charges; offenses against the person such

as murder, manslaughter, kidnapping, false imprisonment, and sexual offenses; and

offenses against the public order and public domain. Property offenses naturally receive

the bulk of attention since asset protection is the proclaimed vocational priority of pri-

vate security.

Equally essential to the professional growth of the security industry is mastery of

select evidentiary principles that affect the investigative practice of the private security

industry. Evaluating the quality, competency, and credibility of witnesses and utilizing

experts throughout all stages of criminal process are fully covered. Heeding the founda-

tional rules and admission for evidence, whether real, testimonial, or expert in design,

assures a worthwhile claim or case for the private sector entity. Assuring the quality of

the evidence is just as critical. The chapter gives suggestions on chain of custody poli-

cies and procedures and delivers a definitional overview of the most relevant evidentiary

principles.

Discussion Questions 1. What two major elements are necessary for the finding of criminal liability?

2. Research your jurisdiction’s manslaughter statutes. What language is utilized to

describe the mental state?

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3. How does one distinguish between the gradations and levels of differing criminal

acts?

4. Give a fact pattern that would involve a private security agent or investigator that

applies the felony murder rule.

5. What types of criminal activity would most commonly occur in American business

and industry and require the investigative services of private security forces?

6. Why should the private security industry be concerned about “public offenses” or

conduct involving the social order?

7. Name three evidentiary rules that are relevant to the private security industry.

Notes 1. See Restatement of Torts }2.05 (1934); William L. Clark & William L. Marshall, A Treatise on the Law

of Crimes 200 (1967); see also John E. Douglas & Mark Olshaker, The Anatomy of Motive (1999); Leo Katz, Bad Acts and Guilty Minds: Conundrums of the Criminal Law (1987).

2. See Charles P. Nemeth, Criminal Law 84 (2004, 2nd 3d. forthcoming 2011); see also Stanton E. Same- now, Inside the Criminal Mind (1984); Lawrence Taylor, Born to Crime: The Genetic Causes of Criminal Behavior (1984).

3. Model Penal Code }2.01 (1-3) (1962).

4. See Nemeth, Criminal, supra note 2, at 77-83.

5. Edward T. Guy, John J. Merrigan, Jr. & John A. Wanat, Forms for Safety and Security Management 138 (1981).

6. George E. Dix & Michael M. Sharlot, Basic Criminal Law, Cases and Materials 151 (1980); see also Steven J. Rossen & Wilton S. Sogg, Smith’s Review of Criminal Law (1985); Nemeth, Criminal, supra note 2, at 87; Katherine R. Tromble, Humpty Dumpty on Mens Rea Standards: A Proposed Method- ology for Interpretation, 52 Vand. L. Rev. 521, 522 (1999); Note, Mens Rea in Federal Criminal Law, 111 Harv. L. Rev. 2402 (1998).

7. See generally Tromble, supra note 6; Note, Mens Rea, supra note 6; Douglas & Olshaker, supra note 1; Richard Rhodes, Why They Kill: The Discoveries of a Maverick Criminologist (1999); Katz, supra note 1; Frank Remington & Orrin L. Helstad, Mental Element in Crimes—A Legislative Problem, 1952 Wisc. L. Rev. 644 (1952); Rollin M. Perkins, A Rationale of Mens Rea, 52 Harv. L. Rev. 905 (1935); Thomas A. Cowan, A Critique of the Moralistic Conception of Criminal Law, 97 U. Pa. L. Rev. 502 (1949); Dennis v. U.S., 341 U.S. 494 (1951).

8. Model Penal Code }2.02 (1 & 2) (1962). See also Del. Code Ann. tit. 11, }231 (2001); Mo. Rev. Stat. }562.016 (2001); Jonathan L. Marcus, Model Penal Code Section 2.02(7) and Willful Blindness, 102 Yale L.J. 2231, 2232 (1993).

9. Clark & Marshall, supra note 1, at 270.

10. See Nemeth, Criminal, supra note 2, at 53-55; John E. Douglas, Crime Classification Manual (1997); Dictionary of Criminal Justice Terms (1990); 4 William Blackstone, Commentaries 5 (1941); Clark & Marshall, supra note 1, at }}2.01-2.04; Michael J. Pastor, Note: A Tragedy and a Crime?: Amadou Diallo, Specific Intent, and the Federal Prosecution of Civil Rights Violations, 6 N.Y.U. J. Legis. & Pub. Pol’y 171 (2002); Adam Candeub, Consciousness & Culpability, 54 Ala. L. Rev. 113 (2002).

11. See Nemeth, Criminal, supra note 2, at 55-56.

12. See Nemeth, Criminal, supra note 2, at 56.

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13. See generally 2 Frederic Pollock, Sr. & Fredrick W. Maitland, History of English Law (1903); Black- stone, supra note 10; Clark & Marshall, supra note 1, at 108-115; Center for Criminal Justice, Private Police Training Manual 34 (1985); Nemeth, Criminal, supra note 2, at 50-53.

14. There are exceptions to this including Pennsylvania. See 18 Pa. Stat. Ann. }}1105 (2010).

15. See Blackstone, supra note 10, at 205.

16. Bannon v. U.S., 156 U.S. 464 (1894).

17. Task Force on Administration on Justice, The President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts (1967).

18. Id. at 15.

19. As an example see New York’s misdemeanor classification of Sexual Misconduct, at }}130.20. Critics claim it is nothing more than an actual Aggravated Sexual Assault.

20. See generally Perkins, supra note 7; Herbert Wechsler & Jerome Michael, A Rationale of the Law of Homicide, 37 Colum. L. Rev. 701 (1937); see Nemeth, Criminal, supra note 2, at 115.

21. Model Penal Code }210.1 (1962).

22. Id. at }210.2.

23. See Nemeth, Criminal, supra note 2, at 93-97; People v. Erikson, No. 25854 (Ca. Super. Ct. 1997); Edward Imwinkelried, Evidence Pedagogy in the Age of Statutes, 41 J. Legal Educ. 227 (1991).

24. People v. Morris, 187 N.W. 2d 434, 438-443 (Mich. App. 1971).

25. Id.

26. See Nemeth, Criminal, supra note 2, at 128-135; Kenneth W. Simons, Does Punishment for “Culpa- ble Indifference” Simply Punish for “Bad Character”? Examining the Requisite Connection Between Mens Rea and Actus Reus, 6 Buff. Crim. L.R. 219 (2002); Guyora Binder, The Rhetoric of Motive and Intent, 6 Buff. Crim. L.R. 1 (2002).

27. See Nemeth, Criminal, supra note 2, at 97-99; Binder, supra note 26.

28. 18 Pa. Cons. Stat. Ann. }2503 (a) (West 2010).

29. Id. at }2504 (a).

30. See Nemeth, Criminal, supra note 2, at 128-129; Simons, supra note 26; Binder, supra note 26.

31. Mo. Rev. Stat. }565.024 (2010).

32. See Nemeth, Criminal, supra note 2, at 135-144; Dana K. Cole, Expanding Felony-Murder in Ohio: Felony-Murder or Murder-Felony? 63 Ohio St. L.J. 15 (2002); Rudolph J. Gerber, The Felony Murder Rule: Conundrum Without Principle, 31 Ariz. St. L.J. 763 (1999); Guyora Binder, The Model Penal Code Revisited: Felony Murder and Mens Rea Default Rules: A Study in Statutory Interpretation, 4 Buff. Crim. L.R. 399 (2000).

33. Dix & Sharlot, supra note 6, at 470.

34. See Nemeth, Criminal, supra note 2, at 137.

35. James J. Tomkovicz, The Endurance of the Felony-Murder Rule: A Study of the Forces that Shape Our Criminal Law, 51 Wash. & Lee L. Rev. 1429 (1994).

36. Model Penal Code }211.1 (1962).

37. See Nemeth, Criminal, supra note 2, at 185.

38. Model Penal Code }211.2 (1962).

39. 18 Pa. Cons. Stat. }302 (2010).

40. See 18 Pa. Cons. Stat. }}2705-2710 (2010).

41. Guy et al., supra note 5, at 187.

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42. Model Penal Code }212.1 (1962).

43. See State v. Williams, 526 P.2d 1244 (Ariz. 1 974); People v. Caudillo, 580 P. 2d 274 (Cal. 1978); see also Richard Sanders, “Double Offense” Problems in Kidnapping and False Imprisonment Cases, Fla. B.J., Dec. 2003, at 10.

44. Model Penal Code }212.3 (1962).

45. Kelley V. Rea, The Legal Risks of Conducting a Security-Initiated Investigation, 28 Sec. 23 (1991); see also Richard A. Bales & Jeffrey A.McCormick,Workplace Investigations in Ohio, 30 Cap. U. L. Rev. 29 (2002).

46. Robert L. Rabin, Pain and Suffering and Beyond: Some Thoughts on Recovery for Intangible Loss, 55 DePaul L. Rev. 359 (2006).

47. Brenda V. Smith, Checklist Of State Criminal Laws Prohibiting The Sexual Abuse Of Persons In Custody Of Law Enforcement, Lock-Up And Jail Authorities (2008) available at http://www.wcl .american.edu/nic/legal_responses_to_prison_rape/lock-up_fifty_state_checklist.pdf?rd¼1.

48. John Ashby, Employment References: Should Employers Have An Affirmative Duty To Report Employee Misconduct To Inquiring Prospective Employers? 46 Ariz. L. Rev. 117 (2004); Mark Minuti, Employer Liability Under The Doctrine Of Negligent Hiring: Suggested Methods For Avoiding The Hiring Of Dangerous Employees, 13 Del. J. Corp. L. 501 (1988); Henley v. Prince George’s County, 479 A.2d 1375, 1381 (Md. App. 1984), aff ’d in part and rev’d in part, 503 A.2d 1333 (Md. 1986).

49. See Nemeth, Criminal, supra note 2, at 205; Henry L. Chambers, Jr., (Un)Welcome Conduct and the Sexually Hostile Environment, 53 Ala. L. Rev. 733 (2002); NiloofarNejat-Bina, Employers as Vigilant Chaperones Armed with Dating Waivers: The Intersection of Unwelcomeness and Employer Liability in Hostile Work Environment Sexual Harassment Law, 20 Berkeley J. Emp. & Lab. L. 325 (1999).

50. Model Penal Code }213.1 (1962).

51. See Charles P. Nemeth, Judicial Doubt or Distrust: Court Ordered Psychiatric Examination of Rape Victims, 12 Hum. Rights 1 (1984); David P. Bryden, Forum on the Law of Rape: Redefining Rape, 3 Buff. Crim. L.R. 317 (2000).

52. 18 Pa. Cons. Stat. }3126 (2010).

53. Id. at }3127.

54. Kurt A. Decker, A Manager’s Guide to Employee Privacy (1989).

55. 33 Am. Jur. Trials, 286-289.

56. See William C. Cunningham & Todd H. Taylor, The Hallcrest Report, Private Security and Private Police in America (1985).

57. See Nemeth, Criminal, supra note 2, at 310.

58. Robert A. Neale, Arson: The Overlooked Threat to Homeland Security, Emergency Management Online Issue, Sept. 7, 2010, at http://www.emergencymgmt.com/safety/Arson-Homeland-Security.html.

59. Model Penal Code }220.1 (1962).

60. Id. at }220.1 (1962); see Nemeth, Criminal, supra note 2, at 315-319.

61. See Dix & Sharlot, supra note 6, at }410.

62. See 18 Pa. Cons. Stat. }}3301-3307 (2010).

63. Charles P. Nemeth, Private Security and the Investigative Process 263-264 (3rd ed. 2010).

64. Clark & Marshall, supra note 1.

65. Id. at 984.

66. Id. at 986-987.

67. See Nemeth, Criminal, supra note 2, at 298-302.

68. See N.Y. Criminal Law }}140 (McKinney 1980); Nemeth, Criminal, supra note 2, at 302.

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69. Nemeth, Private Security, supra note 63, at 245.

70. See Albert Coates, Criminal Intent in Burglary, 2 N.C. L. Rev. 110 (1924); see also Champlin v. State, 267 N.W.2d 295 (Wis. 1978); State v. Ortiz, 584 P.2d 1306 (N.M. 1978).

71. Clark & Marshall, supra note 1, at 1007.

72. See Nemeth, Criminal, supra note 2, at 307-310.

73. Model Penal Code }221.2 (1) (1962).

74. John Francis, Security Officer Manual (1992).

75. See Nemeth, Criminal, supra note 2, at 168-172.

76. Model Penal Code }222.1 (1) (1962).

77. Wayne R. Lafave & Austin W. Scott, Sr., Criminal Law 698-699 (1972); see also People v. Woods, 360 N.E.2d 1082 (N.Y. 1977); Commonwealth v. Mays, 375 A.2d 116 (Pa. Super. 1977).

78. Lafave & Scott, supra note 77, at 200.

79. See People v. Beebe, 245 N.W.2d 547 (Mich. App. 1976).

80. See Nemeth, Criminal, supra note 2, at 253.

81. James Cleary, Prosecuting the Shoplifter, A Loss Prevention Strategy (1986); Anne-Marie G. Harris, Shopping While Black: Applying 42 U.S.C. }1981 To Cases of Consumer Racial Profiling, 23 B.C. Third World L.J. 1 (2003); see also Center for Retail Research, The Global Retail Theft Barometer (10th ed. 2010) available at http://www.globalretailtheftbarometer.com/pdf/grtb-2010-summary.pdf

82. Clark & Marshall, supra note 1, at 802.

83. Id. at 804-807.

84. Md. Code Ann. Criminal Law }3-401 (West 2010).

85. Model Penal Code }223.2 (Proposed Official Draft 1962).

86. Guy et al., supra note 5, at 152.

87. Model Penal Code 56 (Tentative Draft 1953).

88. Model Penal Code }223.3 (1962).

89. See Nemeth, Criminal, supra note 2, at 275.

90. R.I. Gen. Laws }11-41-4 (2009).

91. Model Penal Code }223.4 (1962).

92. See Nemeth, Criminal, supra note 2, at 270-274.

93. Model Penal Code }223.5 (1962).

94. Id. at }223.6; see Nemeth, Criminal, supra note 2, at 269-270.

95. Id. at }223.7; see Nemeth, Criminal, supra note 2, at 264-265.

96. See Nemeth, Criminal, supra note 2, at 265-267.

97. 18 Pa. Cons. Stat. }3929 (2010).

98. For a thorough analysis of retail theft and its legal and commercial applications, review James Cleary, Prosecuting the Shoplifter, A Loss Prevention Strategy (1986).

99. Id. at 19.

100. Nemeth, Private Security, supra note 63, at 234-238 (2010).

101. Bill Zalud, Retail’s 7 Greatest Security Hits! 28 Sec. 34, 35 (1991).

102. See Nemeth, Criminal, supra note 2, at 275-277.

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103. Note, Insurance Firms Toughen Fraud Fight, 29 Sec. 65 (1992).

104. See Nemeth, Criminal, supra note 2, at 277-283.

105. Clark & Marshall, supra note 1, at 954; see Me. Rev. Stat. Ann. tit. 17-A }702 (2009); Or. Rev. Stat. }165.013 (2009); State v. Tarrence, 985 P.2d 225 (Ore. App. 1999); U.S. v. Sherman, 52 M.J. 856 (U.S. Army Ct. Crim. App. 2000).

106. Iowa Code }715A.2 (2008).

107. 18 Pa. Cons. Stat. }4102 (2010).

108. Id. at }}4103-4104.

109. Id. at }}4105-4106; see also Md. Code. Ann. Criminal Law }}8-103, 8-214 (West 2010).

110. See Cunningham & Taylor, supra note 56.

111. 18 Pa. Cons. Stat. }5501 (2010).

112. Id. at }5104.

113. Id. at }5507.

114. Id. at }7506.

115. Id. at }5502.

116. Id. at }5503; see Nemeth, Criminal, supra note 2, at 56, 102.

117. 35 PA. CONS. STAT. }780-102; 18 Pa. Cons. Stat. }5505 (2010).

118. Ohio Rev. Code Ann. }2917.11(B)(1) (West 2010).

119. 18 Pa. Cons. Stat. }5506 (2010).

120. Id. at }5507.

121. Id. at }5508; Ohio Rev. Code Ann. }2917.12(7) (West 2010).

122. Id. at }5509.

123. Miss. Code Ann. }97-35-37 (2010).

124. Wis. Stat. }947.02 (2010).

125. See Charles P. Nemeth, Law and Evidence 68-74 (2011).

126. See Arnold Markle, Criminal Investigation and the Preservation of Evidence (1977); Jill Witkowski, Can Juries Really Believe What They See? New Foundational Requirements for the Authentication of Digital Images, 10 Wash. U. J.L. & Pol’y 267 (2002).

127. John R. Waltz, Criminal Evidence 389-390 (1975); see also Ignacio v. Territory of Guam, 413 F.2d 513 (9th Cir. 1969), cert. denied, 397 U.S. 943 (1970).

128. See Nemeth, Evidence, supra note 125, at 66.

129. Charles P. Nemeth, Evidence Handbook for Paralegals 41 (1993).

130. See Robert Aronson & Jacqueline McMurtrie, Symposium: Ethics and Evidence: III. The Ethical Lim- itations on Prosecutors When Preparing and Presenting Evidence: The Use and Misuse of High-Tech Evidence by Prosecutors: Ethical and Evidentiary Issues, 76 Fordham L. Rev. 1453 (2007); James W. McElhaney, Proving Your Evidence Is Genuine, A.B.A. J., May 1993, at 96; Joshua A. Perper et al., Suggested Guidelines for the Management of High-Profile Fatality Cases, 132 Archives Pathology & Laboratory Med. 1630 (2008).

131. Model Rules of Prof’l Conduct R. 3.4 cmt. (1989).

132. Jamie S. Gorelick, Stephen Marzen, and Lawrence Solum, Destruction of Evidence 200-202 (1989).

133. Fed. R. Evid. }803 (6).

134. Nemeth, Evidence, supra note 125, at 150-151.

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135. See U.S. v. Reese, 568 F.2d 1246 (6th Cir. 1977).

136. John A. Tarantino, Trial Evidence Foundations 6-24 (1986); see also Cascade Lumber v. Cvitanovich, 332 P.2d 1061 (Ore. 1958); contra Liner v. J.B. Tully and Co., 617 F.2d 327 (5th Cir. 1980); Jill Wit- kowski, Can Juries Really Believe What They See? New Foundational Requirements for the Authenti- cation of Digital Images, 10 Wash. U. J.L. & Pol’y 267 (2002); Heather M. Bell, The Year In Review 2001: Cases from Alaska Supreme Court, Alaska Court of Appeals, U.S. Court of Appeals for the Ninth Circuit, and U.S. District Court for the District of Alaska, 19 Alaska L. Rev. 201(2002); Lance Cole, The Fifth Amendment and Compelled Production of Personal Documents after United States v. Hubbell—New Protection for Private Papers? 29 Am. J. Crim. L. 123 (2002).

137. Nemeth, Evidence, supra note 125, at 49-79; see also Nicole J. De Sario, Merging Technology with Justice: How Electronic Courtrooms Shape Evidentiary Concerns, 50 Clev. St. L. Rev. 57 (2002- 2003); Richard Mahoney, Evidence, 2003 N.Z. L. Rev. 141 (2003).

138. Nemeth, Paralegals, supra note 129, at 32.

139. Nemeth, Evidence, supra note 125, at 83-129; see also Katherine A. Godden, Cartoon Criminals: The Unclear Future of Computer Animation in the Minnesota Criminal Courtroom—State v. Stewart, 30 Wm. Mitchell L. Rev. 355 (2003); De Sario, supra note 137; Mahoney, supra note 137.

140. Nemeth, Paralegals, supra note 129, at 55.

141. See Moore v. Illinois, 408 U.S. 786 (1972); State v. Kazold, 521 P.2d 990 (Ariz.1974); In Re Air Crash Disaster, 635 F.2d 67 (2d Cir. 1980); McCormick v. Smith, 98 S.E.2d 448 (N.C. 1957); U.S. v. Addeson, 498 F.2d 741 (D.C. Cir. 1974); State v. Mills, 328 A.2d 410 (Vt. 1974); Prouda v. McLaughlin, 479 A.2d 447 (N.J. Super. Ct. Law Div. 1984).

142. See Stewart M. Casper, Looking Fraudulent Surveillance in the Eye: How to Refute Distorted Evi- dence, Trial, Jan. 1993, at 137; Greg Joseph, Demonstrative Videotape Evidence, Trial, June 1986, at 60, 63; Robert D. Peltz, Admissibility of “Day in the Life” Films, Fla. Bar J., Jan. 1989, at 55; Martha A. Churchill, Day in the Life Films Subject to Court Challenge, For Def., Dec. 1990, at 24; Grimes v. Employer Mutual Liability Insurance Co., 73 F.R.D. 607 (D. Ala. 1977); Bolstridge v. Central Maine Power Co., 621 F. Supp. 1202 (D. Me. 1985); Joyce Lynee Maderia, Lashing Reason to the Mast: Understanding Judicial Constraints on Emotion in Personal Injury, 40 U.C. Davis L. Rev. 137 (2006); Philip K. Anthony & Donald E. Vinson, Demonstrative Exhibits; A Key to Effective Jury Pre- sentation, For Def., Nov. 1986, at 13; David Tait, Rethinking the Role of the Image in Justice: Visual Evidence and Science in the Trial Process, 6 Law, Probability & Risk 311 (2007).

143. Nemeth, Evidence, supra note 125, at 172-182; see also Jerome A. Hoffman, Special Section on Alabama Law: The Alabama Rules of Evidence: Their First Half-Dozen Years, 54 Ala. L. Rev. 241 (2002); Ida-Gaye Warburton, The Commandeering of Free Will: Brainwashing as a Legitimate Defense, 16 Cap. Def. J. 73 (2003); Lawrence M. Solan & Peter M. Tiersma, Hearing Voices: Speaker Identification in Court, 54 Hastings L.J. 373 (2003).

144. See Fed. R. Evid. }602; see also Michael Graham, Handbook of Federal Evidence (1981); Comment, Witness under Article VI of the Proposed Federal Rules of Evidence, 15 Way. L. Rev. 1236 (1969); C. R. Kingston, Law of Probabilities and the Credibility of Witnesses and Evidence, 15 J. For. Sci. 18 (1970).

145. Frederick Overby, Preparing Lay Witnesses, Trial, Apr. 1990, at 88, 91; Judy Clarke, Trial Preparation: The Trial Notebook, Champion, June 1995, at 4; Sandra Guerra Thompson, Beyond a Reasonable Doubt? Reconsidering Uncorroborated Eyewitness Identification Testimony, 41 U.C. Davis L. Rev. 1487 (2008).

146. See U.S. v. Lyon, 567 F.2d 777 (8th Cir. 1977) cert. denied, 435 U.S. 918; U.S. v. Mandel, 591 F. 2d 1347 (4th Cir. 1979).

147. Tarantino, supra note 136, at 3-11–3-22.

148. Marcus T. Boccaccini & Stanley L. Brodsky, Believability of Expert and Lay Witnesses: Implications for Trial Consultation, 33 Prof. Psychol. Res. & Prac. 384-388 (2002).

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149. Nancy Schleifer, Litigation Forms and Checklists 13-25 (1991).

150. McCormick on Evidence }}43-108 (1972); Alan W. Mewitt, Psychiatric Testimony as to Credibility in Criminal Cases, 13 Crim. L.Q. 79 (1970).

151. William Pipkin, Expert Opinion Testimony: Experts, Where Did They Come from and Why are They Here?, 13 Law & Psychol. Rev. 103 (1989); Anne Bowen Poulin, Credibility: A Fair Subject for Expert Testimony?, 59 Fla. L. Rev. 991 (2007); Jennifer L. Mnookin, Idealizing Science and Demonizing Experts: An Intellectual History of Expert Evidence, 52 Vill. L. Rev. 763 (2007); James S. Schutz, The Expert Witness and Jury Comprehension: An Expert’s Perspective, 7 Cornell J.L. & Pub. Pol’y 107 (1997); Ric Simmons, Conquering the Province of the Jury: Expert Testimony and the Profession- alization of Fact-Finding, 74 U. Cin. L. Rev. 1013 (2006); Harold A. Feder, The Care and Feeding of Experts, Trial, June 1985, at 49; Stephen D. Easton, “Red Rover, Red Rover, Send that Expert Right Over”: Clearing the Way for Parties to Introduce the Testimony of Their Opponents’ Expert Witnesses, 55 SMU L. Rev. 1427 (2002).

152. Nemeth, Evidence, supra note 125, at 202.

153. See Fed. R. Evid. }701; see also U.S. v. Burnette, 698 F.2d 1038 (9th Cir 1983), cert. denied, 103 S. Ct. 2106 (1983); U.S. v. Jackson, 569 F.2d 1003 (7th Cir. 1978), cert. denied, 437 U.S. 907.

154. Fed. R. Evid. }703.

155. Id. at }704.

156. Nemeth, Evidence, supra note 125, at 195-228.

157. Tarantino, supra note 136, at 4-5.

158. Nemeth, Evidence, supra note 125, at 186-189, 221-228; see also Fred Ferguson, Advocacy in the New Millennium, 41 Alberta L. Rev. 527 (2003); Sanja Kutnjak Ivkovic et al., Jurors’ Evaluations of Expert Testimony: Judging the Messenger and the Message, 28 Law & Soc. Inquiry 441 (2003).

159. Pinkerton’s Inc., Investigations Department Training Manual (1990).

160. Note, Expert Witness: Corrupt or Inept?, 30 Sec. 98 (1993).

161. 575 Market St. Suite 2125 San Francisco, CA 94105; Phone: (1) 415-536-0288; Fax: (1) 415-764-4915.

162. Nemeth, Paralegals, supra note 129, at 167-168.

163. Nemeth, Evidence, supra note 125, at 34-39; see also Kevin M. Clermont & Emily Sherwin, A Com- parative View of Standards of Proof, 50 Am. J. Comp. L. 243 (2002); Michele Taruffo, Rethinking the Standards of Proof, 51 Am. J. Comp. L. 659 (2003).

164. Waltz, supra note 127, at 11; See Nemeth, Evidence, supra note 125, at 16; Major Charles H. Rose III, New Developments: Crop Circles in the Field of Evidence, Army L., April/May 2003, at 43.

165. Waltz, supra note 127, at 13; Nemeth, Evidence, supra note 125, at 16-17.

166. Nemeth, Evidence, supra note 125, at 18.

167. Waltz, supra note 127, at 13.

168. Id.; see Nemeth, Evidence, supra note 125, at 11-15; see also Scott Brewer, Scientific Expert Testi- mony and Intellectual Due Process, 107 Yale L.J. 1535 (1998).

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