Criminal Law and Procedure
Crime: punishable offense against society The legal process for a crime is to protect society as a whole, not just the individual victim(s) Crimes must be carefully defined by statutes (laws enacted by state/federal legislature) Well-defined criminal statute is specific, clear, and defines the prohibited behavior without interfering with individual rights
Elements of a Crime: Whether you had a duty imposed by criminal statute to do/not do a specific thing Whether you performed an act or mission in violation of that duty Whether or not you had criminal intent in so doing Duty: Must conform conduct to law s requirements Prosecutor duty: cite stature that defines the duty owed in the case Violation of Duty: Breach of duty: specific conduct of defendant violates statute This is the criminal act
Criminal Intent: Defendant intended to commit the specific act or omission defined as criminal Intent and motive are DIFFERENT! Motive helps to develop a list of suspects, does not show guilt Intent: state of mind that must be present concurrently with act Motive: what specifically drives a person to act
Embezzlement: taking another s property or money by a person to whom it had been entrusted Criminal intent issues for corporations: Can a corporation, which is an organization, form criminal intent the way humans can? When a corporate employee commits a crime, can officers be held criminally responsible? Answer to both: yes Doctrine of Vicarious Criminal Liability: criminal intent of the employee is used as a substitute for the requirement of criminal intent for an officer
Criminal intent related to age: Common Law: Children under age of 7 were deemed incapable of forming criminal intent Children 14 and over were presumed capable of recognizing the difference between right and wrong; can be held accountable, as adults, for their acts Children 7-14: it has to be proven Criminal intent related to age: Today: most states use age 18 as the age of criminal liability; it can range between 16 to 19 Some states even include statutes for those under the age of 7 to be tried and punished as an adult for crimes such as murder Adult crime is known as juvenile delinquency for those under age 18
Possible defense: lack of mental capacity to determine what is right and wrong Insane persons are not responsible for their criminal acts However, if you are drunk or on drugs, you are held responsible Criminal intent exceptions: Traffic violations Careless conduct (DUI/DWI) Vehicular homicide
Felony: Crime punishable by prison (at least a year), fines over $1,000, both, or even the death penalty Examples: Murder Kidnapping Arson Rape Robbery Burglary Embezzlement Perjury Theft (large sums) Hate Crime: Recently added as a felony Originally passed in 1969 Included crimes incited by: Race Color Religion National origin Updates in 2009 include: Disability Sexual Orientation Gender/Gender identification
Misdemeanor: Less serious crime punishable by jail (year or less), fines of $1,000 or less, or both Lessor misdemeanors are considered to infractions; only punishable through a fine Infractions do not require a jury since there is no risk of jail time Examples: parking violations, littering, etc.
Crimes against people: Assault and battery Hate crimes Kidnapping Rape Murder Crimes against property: Theft Robbery Embezzlement Crimes against public peace and order: Treason Tax evasion Perjury Crimes against realty: Burglary Arson Criminal Trespass Crimes against decency: Bigamy Obscenity Prostitution
Crimes against consumers: Fraudulent sale of securities Violation of food and drug laws
White-collar crimes: crimes committed in the business world Usually punished through fines and/or short prison sentences Do not involve: Force Violence Physical injury to people Physical damage to property Examples: Tax fraud Stock fraud Using false weighing machines Price fixing False advertising Bribery Political corruption Embezzling
Antitrust laws: Competing companies may not operate in price fixing or in dividing sales regions Require fair competition Larceny: AKA theft Wrongful taking of money or personal property belonging to someone else, with interest to deprive owner of it Robbery: Variation of larceny Taking of property from another s person or immediate presence, against victim s will, by force or causing fear Burglary: Variation of larceny Entering a building without permission when intending to commit a crime
Other variations of larceny: Shoplifting Pick pocketing Purse snatching Larceny may be a felony or misdemeanor depending on the value of items taken Robbery and burglary are always felonies Selling of stolen property: thief who sells stolen goods Receiving stolen property: Person who receives property is known as a fence Knowingly receiving property consists of receiving/buying stolen property for with intent to deprive rightful owner of property
False pretenses: Obtain money or property by lying about past/existing facts Differs from larceny: victim voluntarily parts with items A type of fraud Forgery: Falsely making or altering writing to defraud another Most common: someone signs another person s name on a check without permission Usually a felony If you have permission, not forgery Document has to be legally enforceable
Bribery: Unlawfully offering or giving anything of value to influence performance of an official in the carrying out of his or her public/legal duties Accepting the bribe is also a crime Commercial bribery: bribing nongovernmental parties (companies) Foreign Corrupt Practices Act of 1977 Prohibits most instances of bribery in foreign countries by U.S. companies Many other nations do not make criminal or prosecute actions by their companies
Computer crimes: In past years, it was not considered stealing of material because you were only taking electrical pulses which are not owned Response to this: creation of the federal Computer fraud and Abuse Act that specifically focuses on computer-related crimes Extortion (blackmail): Obtaining money or other property from a person by wrongful use of force, fear, or the power of office Conspiracy: Agreement between two or more persons to commit a crime; usually secret Conspiracy is a crime separate from the act Can be a felony or a misdemeanor
Arson: Willful, malicious, and illegal burning or exploding of a building Can include other types of property Do without owner s consent Can also include when you burn your own building to commit insurance fraud
Rights of the accused: Due process Fair investigations No self-incrimination Police must have probably cause: a reasonable ground for belief Legal representation Miranda warning: developed through 1960s case of Miranda vs Arizona Evidence must prove guilt beyond a reasonable doubt in order to convict Trial by jury Unanimous decision by jury
Criminal conduct of others: If you knowingly aid in the commission of a crime, you are also guilty of the crime Also, if you plan the implemented crime, you are guilty Felony-murder rule: if someone is killed during a felony, automatic charge of felony murder
Defense: Legal position taken by an accused to defeat the charges against them Sometimes evidence that proves guilt cannot be used due to procedural defenses Even if there is sufficient admissible evidence to show guilt, a substantive defense could excuse conduct Procedural defenses: Based on problems with the way evidence is obtained, the way the arrest occurs, the questions were asked, the trial procedures, the punishment IGNORANCE OF THE LAW IS NOT A DEFENSE Not being read your Miranda warning before confession is also a defense
Substantive defenses: They disprove, justify, or excuse the alleged crime Discredits the evidence presented by the prosecution Discredits the SUBSTANCE of the prosecution s evidence Self-defense: Use of the force that appears to be reasonably necessary to the victim to prevent death, serious bodily harm rape, or kidnapping Also extends to family or others whom you have a legal duty to protect Cannot use deadly force in a non-deadly force situation
Self-defense: Only non-deadly force may be used to protect or recover property Cannot set deadly traps to unoccupied buildings You may not shoot a thief who is escaping with stolen property Criminal insanity: Because of a verifiable mental disease or defect, the accused does not know the difference between right and wrong Criminally insane means no criminal intent and then no crime Must prove the insanity
Immunity: Freedom from prosecution even when one has committed the crime charged May be granted if one criminal is willing to testify against another May grant to witness in order to avoid selfincrimination
Contempt of court: Action that hinders the administration of justice Witness refuses to testify Punishable by imprisonment Punishment: penalty provided by law and imposed by court Purpose: discipline wrongdoer, not remedy the wrong Punishment should deter others from committing same crime Also, it is to remove criminals from the street and possibly rehabilitate them; juvenile cases are meant to rehabilitate Range from fines to prison to death Eighth amendment protects from cruel and unusual punishments
Criminal statutes set limits for punishment, but allow for judge discretion Plea bargain: Agree to plea to a lessor crime in order to have charges of more severe crime dropped Give up right to a public trial by doing this Must be approved by the judge who is presiding/has jurisdiction
Pre-trial procedure: Investigation unless caught in the act Information: form filed by prosecution after evidence has been collected to prove guilt Indictment: written accusation declaring there is sufficient evidence to try the identified individual of a specified crime Some states, and at the federal level, will use the indictment instead of the information Indictment comes from grand jury: group of citizens selected to hear, in secret, the evidence of alleged crimes submitted by prosecutor Indictment leads to arrest warrant: court order for the apprehension of the accused
Individual is arrested: taken into custody and deprived of rights in order to answer for criminal charge Procedure: Miranda warning Booked Finger-printed Photograph Possible collection of DNA Check past record
Arraignment: Formal charges from information/indictment are read Defendant pleads guilty or not guilty Guilty: allocution and punishment Not guilty: may elect to have a preliminary hearing Preliminary hearing: hear evidence to determine if there is enough to proceed to trial Defendant, at any time, may decide to plead guilty to charges
Arraignment also determines if the defendant should be kept in jail, RoR, or released on bail RoR (Release on own recognizance): defendant promised to appear for trial without paying bail Bail: sum of money or property deposited or pledged to guarantee that the person will return for trial/hearing Court determines amount of bail Bail may be denied if there is fear of flight of defendant May use a bail bonding agent to post bail if family/friends cannot do so Jump bail: fail to appear for trial Bail is forfeited to the state Arrest warrant is issued Bonding agent can look for defendant as well
If you use a bonding agent, you pay a fee equal to 10% of bail which is not returned Some states require 10% to be paid to the court If you show up for court, bail is refunded minus processing fees For minor cases, you receive a citation and are released Citations: Identifies offense Directs person to appear in court if they want to dispute the charge Direct person to pay fine without appearing in court; it is a standard fine
Prep for trial: Both sides continue investigations for trial evidence Collection includes: Documents (phone records, emails, receipts, etc.) Lab reports Doctor files Witness testimony Subpoena: command from court to an individual to appear and testify or produce documents or other pieces of evidence in their possession Failure to do so is a type of contempt of court Motions: pleas to the court to order some action or ruling on matters pertinent to the case
Procedure at trial: Trial (petite) jury: body of impartial citizens selected to determine questions of fact Jury members are selected before the case begins by being asked a wide-range of questions Voir dire: prelim exam of potential jurors to determine their ability to be impartial in trial
Ways to rid possible jurors: Challenge for good cause: ties to defendant or prosecution that could lead to being prejudicial Preemptory challenges: having jurors dismissed with no cause needed After choosing and swearing in of jurors, each attorney will give an opening statement: briefly outlines their case and what they hope to prove Prosecution presents their evidence Defense then presents their evidence
Evidence: anything that provides information used to prove or disprove the alleged facts Testimony: evidentiary statements made by witnesses in court under oath
Direct examination: the side calling the witness questions the individual Cross examination: when the opposite side questions the same witness Redirect exam: calling side has the right to question their witness to counter some of the questions raised on cross examination Then can have recross exam Witness types: Expert: those who possess superior knowledge in a specific area Character: those who can speak on behalf of defendant or witness Eye: those who saw the crime taking place
Closing statements: each side gets an opportunity to summarize their points in one last effort to encourage jury to move in their favor Judge then gives jury instructions: where judge specifies the required elements of the alleged crime that must be shown by evidence beyond a reasonable doubt Deliberation: jury goes into a private room to discuss the case in order to come to a final decision Verdict: decision of the jury (or judge if there is no jury) on the trial Hung jury: when jury cannot develop a unanimous decision
If a hung jury, trial is dismissed (without prejudice) and may be filed again by prosecution If guilty, judge moves to a sentencing hearing: where victim impact statements are given and information regarding the character of the convicted is given in order to reach a final sentence (punishment) Probation: restricted status that allows convicted criminal to live with limited freedoms; if violated, criminal is incarcerated Appeals: documents sent to the appellate court detailing errors of the law allegedly made by trial judge Case can then be affirmed or overturned