Nature of Crimes

1. Nature of Crimes • Crimes are public wrongs, classified from most serious to least serious as • Felony • Misdemeanor • Infraction • Purpose of criminal sanctions (fines or imprisonment): deterrence, rehabilitation, incapacitation 5 - 1

2. Elements • To convict a defendant of a crime, the government must • Demonstrate that alleged acts violated a criminal statute • Prove beyond a reasonable doubt that the defendant committed the acts • Prove the defendant had the capacity of criminal intent • Courts narrowly interpret criminal statutes • Example: U.S. v. Sun-Diamond Growers of California 5 - 2

3. Constitutional Limitations • Government may not enact an ex post facto (after the fact)law • Thus a person cannot be charged with a crime for an act that when committed was not a crime • Constitutionally-protected behavior cannot be criminal • Example: Griswold v. Connecticut 5 - 3

4. Constitutional Limitations • First Amendment allows government to regulate indecent speech and does not protect obscene expression • To determine if expression is obscene, courts apply the three-part Miller test • Example: Supreme Court applied the Miller test to strike down most of the Congressional efforts to criminalize obscenity on the Internet 5 - 4

5. Proof and Intent • Defendants are presumed innocent until proven guilty beyond a reasonable doubt • Most serious crimes require proof of the defendant’s mens rea, or criminal intent • Defendant must have had capacity to form criminal intent • Three types of incapacity recognized: intoxication, infancy, and insanity 5 - 5

6. Criminal Procedure • Arrest and booking of defendant • Arrest report filed with prosecutor • If defendant charged, complaint filed • Initial appearance of defendant before judicial officer • Preliminary (probable cause) hearing 5 - 6

7. Criminal Procedure • If probable cause exists, formal charge – information or indictment – filed with court • Arraignment of defendant in which defendant enters a plea • guilty, not guilty, nolo contendere (no contest) • Defendant who pleads not guilty and faces incarceration for more than six months may choose a jury trial • Bench trial (judge only) also available 5 - 7

8. Constitutional Protections • Bill of Rights: first ten amendments to the U.S. Constitution • Literally binds only the federal government, but applied to states through the due process clause of the Fourteenth Amendment 5 - 8

9. Constitutional Protections • Fourth Amendment protects persons against unreasonable and arbitrary searches and seizures • Interpreted by Supreme Court to protect a reasonable expectation of privacy • General rule: warrantless searches are unreasonable (unconstitutional) • SeeUnited States v. Hall 5 - 9

10. What is a Search? • Many Fourth Amendment cases carve out exceptions to the general rule, establishing activities that do not constitute a search: • Visual observation of things or activities in public view • Narcotics detection dogs used in a public place to investigate luggage or cars • Enhanced aerial photography of a facility 5 - 10

11. What is a Search? • But the Supreme Court in Kyllo v. United States, held a device not in public use to examine what would otherwise be hidden is a search, thus presumptively unreasonable without a warrant 5 - 11

12. Warrantless Searches • The Supreme Court has held that constitutional warrantless searches include: • The area within an arrestee’s immediate control • Premises police enter in hot pursuit of an armed suspect • Stop-and-frisk searches for weapons • Inventory searches of property (e.g., briefcase, automobile) in an arrestee’s possession • Consensual searches 5 - 12

13. The Exclusionary Rule • The exclusionary rule prevents the use of evidence seized in an illegal search in a subsequent trial of the defendant • Supreme Court restricts the operation of the rule 5 - 13

14. The Fifth Amendment • The Fifth Amendment provides a privilege or protection against compelled testimonial self-incrimination • Practical meaning: a person may remain silent if making a statement would assist the government in prosecuting the person • Miranda warnings safeguard the right • Also prohibits prosecutorial comments at trial about the defendant’s failure to testify 5 - 14

15. Scope of Fifth Amendment • Self-incrimination privilege applies to • Testimonial admissions, thus police may compel a defendant to provide non-testimonial evidence (fingerprints, body fluids, hair) • Applies only to humans (not corporations) • Applies only if a defendant could be charged with a crime (not merely a civil lawsuit) • Double jeopardy clause protects defendants from multiple criminal prosecutions for the same offense 5 - 15

16. Sixth Amendment • Applies to criminal cases by guarantees of a • Speedy trial • Impartial jury • Right to confront and cross-examine witnesses • Right to effective assistance of counsel 5 - 16

17. White Collar Crimes • Under modern rule, a business organization may be liable for criminal offenses committed by employees who acted within the scope of their employment and for the benefit of the corporation • Numerous policy debates about how to deal with corporate crime 5 - 17

18. Ethics in Action • Does an employee have an ethical duty to his or her employer? • When an employee learns of apparently illegal conduct by his or her employer, does the employee have an ethical duty to become a whistleblower? • What practical consequences might an employee face if he or she blows the whistle on illegal corporate activity? 5 - 18

19. White Collar Crimes • Regulatory offenses • Example: violating the Clean Water Act • Fraudulent acts • Examples: false claims, fraudulent concealment, wire fraud • Sarbanes-Oxley Act violations • Example: Knowingly altering documents or business records with the intent to impede a government investigation 5 - 19

20. Computer Crime • In general, existing criminal statutes apply to criminal activity conducted via computers, though these laws often are inadequate • The Computer Fraud and Abuse Act imposes criminal and civil liability on a person who “knowingly, and with intent to defraud, accesses a protected computer without authorization . . . [and] obtains anything of value.” • Example: accessing a competitor’s computer to obtain customer lists 5 - 20