Professional Documents
Culture Documents
Crimes
Crimes
• Felony
– Serious Offenses (e.g. murder, rape, arson)
– Generally Punishable by Long Confinement
(some offenses, in some jurisdictions, by
Execution)
– May result in Disenfranchisement (Lost of certain
rights)
Crime = Public Wrongs
• Misdemeanors
– Lesser Offenses (e.g. traffic
offenses, disorderly conduct)
– Generally Punishable by Fines or
Short Confinement
Essentials of a Crime
• 4) Capacity (cont.)
– Voluntary Intoxication
• Generally not a complete defense
• But may diminish the degree of the defendant’s liability.
– Juvenile Status
• At common law, children younger than 14 years old
could not form criminal intent.
• Most jurisdictions still have a special status for juvenile
defendants
• But repeat offenders, and those charged with very
serious offenses may be treated as adults.
– Diminished Capacity
• “Twinkie Defense”
Essentials of Crime
• 4)Capacity (cont.)
– Insanity
• at time of act = no liability
• at time of trial = delay
• after trial but before sentencing = delay
• The Supreme Court has found that States may
establish a presumption that defendant is competent
to stand trial and make the defendant prove that he
isn’t. (see Medina v California, 1992).
• Juries tend to be hostile to the insanity defense
Essentials of Crime
4) Capacity – Insanity Tests
– M’Naghten (Knowledge of Right and Wrong) Test: This test, based on the 1843 case
of Daniel M’Naghten who killed the British Prime Minister’s Secretary, states that a
person may be "insane" if "...at the time of the committing of the act, the party accused
was laboring under such a defect of reason, arising from a disease of the mind, as not
to know the nature and quality of the act he was doing, or, if he did know it, that he did
not know what he was doing was wrong." This test still applies in the majority of
American jurisdictions. For a case applying this test see Serritt v. State WL 21182608
(Ga.App. 2003).
– Irresistible Impulse Test: a person may have known an act was illegal; but, because of
a mental impairment, they couldn't control their actions. For example, in 1994, Lorena
Bobbitt was found not guilty of the felony of "malicious wounding" (the equivalent of
mayhem), when her defense argued that an irresistible impulse led her to cut off her
husband's penis. In the late nineteenth century some states and federal courts in the
United States, dissatisfied with the M'Naghten rule, adopted the irresistible impulse test.
This test, which had first been used in Ohio in 1834, emphasized the inability to control
one's actions. A person who committed a crime during an uncontrollable "fit of passion"
was considered insane and not guilty under this test.
– Durham Test: This test, first set forth the New Hampshire Supreme Court in 1871, and
later adopted by the U.S. Court of Appeals for the D.C. Circuit in 1954 states that "... an
accused is not criminally responsible if his unlawful act was the product of mental
disease or defect". After the 1970s, US jurisdictions have tended to not recognize this
argument as it places emphasis on "mental disease or defect" and thus on testimony by
psychiatrists and is argued to be somewhat ambiguous.
Essentials of Crime
4) Capacity – Insanity
Note that 4 states, Idaho,
Montana, Utah and Kansas have
eliminated the insanity defense
altogether!
Essentials of Crime
• The idea behind capacity
is that we want to punish
the willful wrongdoer: an
essentially moral idea.
– Is it moral to execute children
who have murdered others?
(see, Stanford v. Kentucky,
109 S. Ct. 2926 (1989)), or
the mentally retarded (see,
Penry v. Lynaugh, 109 S.Ct.
2934 (1989))? Recently
disallowed by U.S. Supreme
Court in Roper,
Superintendent, Potosi
Correctional Center v.
Simmons (2005)
– (see:
http://www.mindfully.org/Refor
m/2005/Death-Penalty-
Juveniles1mar05.htm
Essentials of Crime
Motive
Is the desire or inducement which
incites or stimulates a person to do an
act as opposed to “intent” which is the
purpose or resolve to do an act...but
not the “reason” for it.
Laws should
distinguish between
intentional and
unintentional wrongs
(Numbers 35:18-28;
Exodus 21:12-14).
Rationales for Punishment
Backward-Looking
Retribution/Restoration/Revenge
Forward-Looking
Deterrence, Incapacitation,
Rehabilitation
Retribution
An “eye for an eye”, intended as a
limitation not a license. A measured
response to restore the moral balance
upset by offense. The practice of "getting
even" with a wrongdoer. The suffering of
the wrongdoer is seen as good in itself,
even if it has no other benefits. One reason
for societies to include this judicial element
is to diminish the perceived need for street
justice, blood revenge, and vigilantism.
Sometimes called the “mirror-punishment”
or “poetic justice”.
Retribution
Retribution is found in “Old Testament” or
Hebrew Scriptures of the Bible (see
(Deuteronomy 19:21; Leviticus 24:20;
Exodus 21:22-24) and in the Code of
Hammurabi. It often involves punishing the
part of the body used to commit the crime.
Extreme examples include the amputation
of the hands of a thief, as still permitted by
Sharia (Islamic) law, or during the Middle
Ages in Europe; or disabling the foot or leg
of a runaway slave. A less extreme example
is the American tradition of putting soap
into a child's mouth for using inappropriate
language ("washing your mouth out with
soap").
Retribution
Another form of
retribution involves
mirroring the physical
method of the crime, e.g.
executing a murderer
with his own weapon.
Restoration
To make the victim right or
whole again. Examples might
include a vandal being made
to clean up the mess he has
made or a thief being made to
return stolen property or make
compensatory payments.
Revenge
Sometimes called
“retaliation”. Involves
a passionate and often
excessive “getting
back”.
Deterrence
Crime prevention through fear of
future suffering. It involves
attempting to dissuading
someone from future
wrongdoing, by making the
punishment severe enough that
the benefit gained from the
offense is outweighed by the cost
and probability of the
punishment.
Deterrence
Deterrence is a common
reason given for punishment,
however, using punishment
as a deterrent has the
fundamental flaw of assuming
that people will rationally
consider the consequences of
their acts before acting, which
they often don’t.
Deterrence
Two Types of Deterrence
FACTS: Petitioners were assessed civil penalties and were later indicted on
charges arising out of the same transaction. Petitioners moved to
dismiss the indictment on Double Jeopardy grounds.
DECISION: No.
REASONS:
1. The Double Jeopardy Clause protects only against the imposition of
multiple criminal punishments.
2. Whether a particular punishment is criminal or civil is, at least initially,
a matter of statutory construction. If the statutory scheme is so punitive
to transform the civil remedy into a criminal penalty, the Double
Jeopardy Clause may be violated.
3. Neither the monetary penalties nor the debarment sanctions are so
punitive in form and effect to render them criminal.
5th Amendment
Double Jeopardy
In this case the Supreme Court refused to
incorporate the Double Jeopardy Clause of
the 5th Amendment into the Due Process
Clause of the 14th. To merit incorporation,
said Justice Benjamin N. Cardozo, a
provision of the Bill of Rights must be
essential to “a scheme of ordered liberty.”
Cardozo’s majority opinion suggested that
the 1st Amendment freedoms which had
been previously incorporated, represented
“the matrix, the indispensable condition, of
nearly every other form of freedom.” The
Double Jeopardy Clause, in Cardozo’s view,
lay on “a different plane of social and moral
values.” Palko v. Connecticut (1937).
5th Amendment
Double Jeopardy
Despite the fact that the North
Carolina Constitution contains
no express provision
prohibiting double jeopardy, it
is regarded as an "integral
part" of our Constitution's Law
of the Land Clause, N.C.
Const. art. I, § 19. State v.
Ballard, 280 N.C. 479, 482, 186
S.E.2d 372, 373 (1972).
6th Amendment
Provides Protections To:
– Speedy/Public Trial
– Trial By Jury
– Be Informed Of Charge
– Confront Accuser
– Subpoena Witnesses
– Assistance Of Attorney
Right to Confront Accusers
Does 2-way teleconferencing meet the requirement
that a defendant be allowed to confront their
accuser?
• Equal Protection
– Intermediate Scrutiny.
• Applied to laws involving gender or legitimacy.
• To be constitutional laws must be substantially
related to important government objectives.
Criminal Procedure Protections
Equal Protection
“Rational Basis” Test.
• Applied to matters of economic or social
welfare.
• Laws will be constitutional if there is a rational
basis relating to legitimate government interest.
(WHS Realty v. Morristown, 1999)
Criminal Procedure Protections
• Due Process
– 5th and 14th amendments provide “no
person shall be deprived of life, liberty or
property without due process of law.”
– Due Process includes both Procedural
and Substantive issues.
Criminal Procedure Protections
• Procedural Due Process
– Procedures depriving an individual of her
rights must be fair and equitable.
– Constitution requires adequate notice and
a fair and impartial hearing before a
disinterested magistrate.
Criminal Procedure Protections
• Substantive Due Process
– Focuses on the content or substance of
legislation.
– e.g. Laws limiting fundamental rights
(speech, privacy, religion) must have a
“compelling state interest.”
– e.g. Laws limiting non-fundamental rights
require only a “rational basis”.
Criminal Procedure Protections
• Due Process requires that criminal statutes be clearly
worded (so that they put an ordinary person on
notice).
– Chicago v. Morales, 527 U.S. 41 (1999)
• White-collar Crime
– Public policy justifies the imposition of
liability on otherwise innocent persons who
stand “in responsible relation to a public
danger” when an act does not require
intent. A failure to act is sufficient to
impose liability if the defendant had the
power to prevent the violation. United
States v. Park, 421 U.S. 659 (1975).
Business Crimes
• White-collar Crime
– State of Connecticut v. Nanowski, 56 Conn. App.
649, 746 A.2d 177, cert. denied, 252 Conn. 952,
749 A.2d 1203 (2000)
• The state does not have to prove Nanowski intended not to pay
his employees in order to successfully prosecute him. Many
regulatory offenses dispense with the requirement of proof of
criminal intent. Such regulations usually impose strict liability on
corporate officers. Strict liability does not require proof that the
defendant intended to exact harm, but simply that s/he committed
some wrong. Critics of strict liability crimes argue that the mens
rea requirement is fundamental to criminal law and is consistent
with the retributive principle that one who does not choose to
cause social harm, and who is not otherwise morally to blame for
its commission, ought not to be punished. Nanowski illustrates
the diminished, or non-existent, role of the mens rea requirement
in public welfare offenses. It grows out of the U.S. Supreme
Court decision in United States v. Park. 421 U.S. 658 (1975).
Business Crimes
• White-collar Crime
– The RCRA criminal provision states in part, “any person who
knowingly ... disposes of any hazardous waste ... without first
having obtained a permit” is subject to prosecution. At a
minimum, the word knowingly means a person knew the
waste was hazardous. Disposal without a permit must also
be knowing. Under certain regulatory statutes requiring
knowing conduct, however, the government need only prove
knowledge of the actions taken and not that defendants knew
they were violating a statute. The principle that ignorance of
the law is no defense applies. Where dangerous or
deleterious waste materials are involved, the probability of
regulation is so great that anyone who is aware that he is in
possession of them or dealing with them must be presumed
to be aware of the regulation. Knowledge can be inferred on
the part of those whose business it is to know; it may be
inferred as to those who hold the requisite responsible
positions with the corporation. U. S. it Johnson & Towers,
Inc., 741 F.2d 662 (3 Cir. 1984).
Business Crimes
• White Collar Crime
– Recent trend to get tough (e.g.
Sarbanes-Oxley)
– Often difficult to prove individual liability
for corporate crimes
– State/Federal Sentencing Guidelines -
primary objective: consistency
Some Specific Business Crimes
• Worker Endangerment-
Occupational Safety & Health
Act
• Obstruction Of Justice
• False Statement
– Bank
– Federal Agency (This is what got
Martha Stewart!)
OS
HA
Corruption/Bribery
Bribery
Bribery of public officials is a crime. The bribe
can be of anything that the official considers
valuable. Commission of the crime occurs when
the bribe is tendered, the official does not have to
agree to do anything nor even accept the bribe.
In some states, commercial bribery, that is,
kickbacks and payoffs from an individual working
for one company to another individual working
for another company is a crime. Commercial
bribes are typically given to obtain proprietary
information, cover up an inferior product, or
secure new business. Industrial espionage
sometimes involves commercial bribery. Bribing
foreign officials to obtain favorable business
contracts is also a crime.
Corruption/Bribery
• Corruption exists in every country
and is endemic to some, especially
developing countries.
Africa: Corruption is perceived to be rampant
in Cameroon, Kenya, Angola, Uganda,
Madagascar and Nigeria. In Kenya, bribery
costs the average citizen 20% of their income.
In 2004, Kenyan President Kibaki launched a
“zero corruption” initiative. (Unfortunately, his
government was recently forced to resign due
to, you guessed it, corruption). No African
country was listed among the 25 least corrupt
countries in the most recent Transparency
International Survey (Botswana, which was
rated as Africa’s least corrupt nation, tied for
29th overall).
Corruption/Bribery
Asia: Corruption is perceived to be
rampant in Bangladesh and Indonesia. In
Indonesia, it is estimated that 20% of
business costs are bribes to bureaucrats.
The Financial Times recently reported that
“deep corruption [in China] is corroding
the exercise of state power.” Falsified
accounts used to cover up this corruption
have the effect of rendering China’s official
statistics “virtually meaningless.”
Corruption/Bribery
Latin America: Corruption is perceived to
be rampant in Paraguay. In Ecuador, it is
estimated the government could pay off its
foreign debt in five years if corruption was
brought under control. In Argentina,
corruption in the customs department
defrauded the government out of $3 billion
in revenues. Officials estimated that 30%
of all imports were being under-billed and
approximately $ 2.5 billion of goods were
brought into the country labeled “in
transit” to another country, thus illegally
avoiding import taxes altogether.
Corruption/Bribery
• In Albania, approximately one-third of potential
profits are lost to bribe payments that amount to
8% of inventory turnover.
• German companies are estimated to pay an
aggregate of over $ 3 billion a year in bribes to
obtain business contracts abroad.
• In industrial countries 15 % of businesses were
found to pay bribes, but in the former Soviet
Union this figure jumped to over 60 %.
• In Kazakhstan typical bribe to win approval of a
large construction contract is 15 to 20% of
contract price.
Political Corruption/Bribery
• In Mexico, suspicions surround the ability of Raul
Salinas, the brother of former President Carlos
Salinas, to amass a fortune of over $ 120 million
while a public official.
• Two former presidents of South Korea were
convicted of developing a fund of over $900
million while they were in office in the 1980s and
1990s.
• According to Transparency International, in 6 out
of 10 countries, political parties were determined
to be their nation’s most corrupt institutions.
Corruption/Bribery
• 1997 estimate by the World Bank
placed the total about of bribery
involved in international trade at
$ 80 billion per year.
• A recent World Bank survey of
3,600 firms in 69 countries found
that 40 % of businesses pay
bribes.
Corruption/Bribery - Least Corrupt
Elements
Degrees
a. First degree—burning occupied
buildings
b. Second degree—burning unoccupied
structures
Criminal Mischief
Three kinds of harm to tangible property
a. Damage or destruction by fire, explosives, or
“dangerous acts”
b. Tampering so as to endanger tangible
property
c. Deception or threat that causes monetary
loss
Other elements
a. Actus reus: burning, exploding, or other
dangerous act or tampering or endangering by
deceit or threat
b. Mens rea: purposely, knowingly, recklessly,
or negligently doing any of the acts
False Imprisonment
The crime of false imprisonment is
similar to kidnapping with the
primary difference being the lack of
the actus reus of asportation. In
many jurisdictions, like NC, it is
treated as a lesser included offense
to kidnapping (see State v. Lang, 58
N.C. App. 117, 118, 293 S.E.2d 255,
256, disc. review denied, 306 N.C.
747, 295 S.E.2d 761 (1982).
False Imprisonment
The crime of false imprisonment (or false
arrest) is the unlawful detention of
another by force without consent. The
elements of this crime require:
1) the imprisonment of the person and,
2) that the imprisonment must be
unlawful.
A false imprisonment often results from
an unlawful show of force. The person is
confined within bounds so as to be
deprived of liberty of movement.
False Imprisonment
Generally, false
imprisonment is considered
a misdemeanor unless it
involves violence, menace,
fraud or deceit, in which
case it may be a felony.
False Imprisonment
Taking hostages during false
imprisonment
– 1. to protect the perpetrator from
arrest (which substantially increases
the risk of harm to the victim), or
– 2. for purpose of using the victim as
a “human shield" =
will often result in an enhanced felony
sentence.
Inchoate Offenses
An inchoate act/offense is a crime relating to the act
of preparing for or seeking to commit another crime. A
true inchoate offense occurs only when the intended
crime is not perpetrated. Absent a specific law, an
inchoate offense requires that the defendant have the
specific intent to commit the underlying crime. For
example, for a defendant to be guilty of the inchoate
crime of solicitation of murder, she must specifically
intend to cause the death of a particular human being.
It would not be enough for defendant to ask another to
kill the victim when she simply intended to scare the
victim. (Note that specific intent can be inferred, and
many people would infer the specific intent to kill the
victim simply by defendant asking another to do it).
Inchoate Offenses
Examples of inchoate offenses include:
Attempt
Conspiracy
Solicitation
Aiding or abetting
Accessory
Attempt
In 360 B.C. Plato is attributed with stating that one who
“has a purpose and intention to slay another and only
wounds him should be regarded as a murderer.”
However, about 1300, English Nobleman Henry of
Bracton stated that “For what harm did the attempt
cause, since the injury took no effect.” (As they say in
common American parlance, “No harm, no foul.”)
Attempt was not a crime at early British common law.
However, by the 1400’s English judges began applying
the maxim “The will shall be taken for the deed” and
English criminal records show parties began be
criminally charged for attempt in England in the late
1500’s. In the 1600’s, Frances Bacon argued that “all
acts of preparation should be punished.” By the 1700’s,
English courts recognized a formal law of attempt. In
Rex v. Scofield (1784), a servant was charged for
attempting but failing to burn down his master’s house.
Attempt
The purpose of laws punishing attempts to commit a
crime is to discourage people from planning and
attempting to commit “dangerous conduct.”
The essence of the crime of attempt is that the
defendant has tried but failed to commit the actus reus
("guilty act") of the full offense, but has the direct and
specific intent to commit that full offense. The normal
rule for establishing criminal liability is to prove an actus
reus accompanied by the appropriate mens rea at the
relevant time.
Early common law required some actual injury. Most
modern criminal statutes do not.
Attempt
Whether the actus reus of an attempt has occurred is a question of
fact for the jury to decide. A charge of attempt requires more than
mere intent (see People v. Murray). Note that the common law used
to distinguish between acts that were “merely preparatory” and
those which were “sufficiently proximate”. When anyone is
planning and executing a plan, there will always be a series of
steps that have to be taken to arrive at the intended conclusion.
Some aspects of the execution will be too remote from the full
offense, e.g. watching the intended victim over a period of time to
establish the routines, traveling to a store to buy necessary tools
and equipment, etc. But the closer to the reality of committing the
offense the potential wrongdoer moves, the greater the social
danger he or she becomes. Since the potential wrongdoer could
change his or her mind at any point before the crime is committed,
the state should wait until the last possible minute to ensure that
the intention is going to be realized.
Attempt
In English law, the test of proximity was that the
defendant must have "...crossed the rubicon, burnt his
boats, or reached a point of no return". (D.P.P. v.
Stonehouse [1977] 2 All ER 909 per Lord Diplock.)
Another test is whether the defendant has “reached that
part of the series of acts, which if not interrupted or
frustrated or abandoned, would inevitably result in the
commission of the intended offence” (Stephen's Digest
of the Criminal Law).
The Model Penal Code (MPC) uses a “substantial step test”, looking at
whether the defendant has taken a substantial step or steps towards the
commission of the crime.
The “indispensable act test” asks whether the defendant had gotten control
of everything they needed to commit the crime. In most jurisdictions,
possession of the materials to commit the crime is not sufficient evidence of
attempt.
• FACTS: Hughes Aircraft contractually agreed to supply the United States with microelectronic
circuits to be used in weapons defense systems. The results of the testing of these circuits
was falsified by Donald LaRue, a Hughes Aircraft employee. Other employees informed
LaRue’s supervisors of the false testing reports. No actions were taken against LaRue, and
the United States was not informed of the fraudulent test results. Both Hughes Aircraft and
LaRue were indicted and tried on charges of conspiracy to default. The trial jury found
Hughes Aircraft guilty, but LaRue was acquitted. Hughes Aircraft appealed its conviction
arguing that it cannot be guilty of conspiracy if the alleged co-conspirator was found not guilty.
• ISSUE: Can Hughes Aircraft be found guilty of engaging in a conspiracy if its alleged co-
conspirators are found not guilty?
• DECISION: Yes.
• REASONS:
• 1. The conviction of one co-conspirator is valid even when the alleged co-conspirators are
acquitted.
• 2. A corporation may be liable for conspiracies entered into by its employees.
• 3. Conspiracies exist when more than one corporate employee works to defraud the
government.
• 4. Since LaRue’s supervisors failed to act after receiving information about LaRue’s
wrongdoing.
Solicitation
Solicitation consists of a person inciting, counseling,
advising, urging, or commanding another to commit a
crime with the specific intent that the person solicited
commit the crime. It is not necessary that the person
actually commit the crime, nor is it necessary that the
person solicited be willing or able to commit the crime
(such as if the "solicitee" were an undercover police
officer).
• Types
– Securities Fraud
– Health Care Fraud
– Mail & Wire Fraud
FRAUD
Mail And Wire Fraud
• Interstate Communication
• Scheme To Defraud- Course Of Action To
Deceive Others
• Legal Aspects- Statement (Material Fact)
Known To Be Untrue Or Disregards Truth
– Intent To Defraud- Act Knowingly
– Good Faith
Mail And Wire Fraud SCHMUCK v. UNITED STATES
109 S.Ct. 1443 (1989)
FACTS: Wayne Schmuck bought and sold used cars. Schmuck’s fraudulent scheme
involved rolling back the odometer on used cars and selling them for inflated prices due to
low mileage. Schmuck was charged with mail fraud since the car title certificate was
mailed to the Wisconsin Department of Transportation. These mailings and the issuance
of new title certification were the necessary steps in completing the sales transaction.
Schmuck argued he cannot be convicted of mail fraud since he did not mail any
documents. The trial court resulted in a conviction. The appellate court affirmed the
conviction. Schmuck filed for and was granted certiorari.
ISSUE: Can Schmuck be guilty of mail fraud when he did not mail anything related to the
fraud?
DECISION: Yes.
REASONS:
1. Schmuck’s rolling back the odometer constitutes fraud.
2. The mailing (by the buyer) of the title certificate forms is an essential element to the
completion of the fraudulent transaction.
3. Although Schmuck did not mail anything, his conviction of the mail fraud charge is
upheld since the mailing clearly was necessary to complete the fraudulent transaction
Bankruptcy Crimes
• Falsify Information
• False Claim
• Concealment of Assets
Money Laundering
Under federal law, financial
institutions must report
currency transactions of over
$10,000. To avoid detection
under this law, those who
engage in illegal activi-ties
may attempt to launder the
money through legitimate
businesses.
Racketeer Influenced &
Corrupt Organizations Act(1970)
(RICO)
• Liability for “Money-laundering”
– Use/Invest Income From Prohibited Activities
– To Acquire/Maintain Interest In Prohibited
Enterprise
– Conducts/Participates/Conspires In Prohibited
Enterprise
• Prohibited Activity
– Pattern Of Racketeering
– Collection Of Unlawful Debt
• Allows for Seizure of Assets
• Allows for Treble Damages
Racketeer Influenced &
Corrupt Organizations Act(1970) (RICO)
H.J. INC. v. NORTHWESTERN BELL TELEPHONE COMPANY
109 S.Ct. 2893 (1989)
FACTS: A class action suit, with H.J. Inc. as the plaintiff, sought an injunction and triple
damages in a RICO suit against Northwestern Bell. The basis for the RICO claims arises
from employees of Northwestern Bell bribing members of the Minnesota Public Utilities
Commission related to the rates that Northwestern Bell charges. The trial court dismissed
this suit since it concluded there was no pattern of wrongdoing. The appellate court affirmed.
H.J. Inc. received certiorari from the Supreme Court.
ISSUE: Does RICO require distinct actions of illegality to find a pattern of racketeering?
DECISION: No.
REASONS:
1. A pattern is found in establishing a relationship among the illegal acts (predicates) and the
threat of continuing illegal activity.
2. The evidence presented in this case shows numerous bribes being paid over a 6-year
period.
3. These multiple examples of predicates and the likelihood the bribes would continue satisfy
the requirements of a RICO claim.
Racketeer Influenced &
Corrupt Organizations Act(1970) (RICO