Nature of Crimes Crimes are public wrongs classified

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

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 5 -2 Growers of California

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

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

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 5 - 5 – Three types of incapacity recognized:

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

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 5 -7 – Bench trial (judge only) also available

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

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) – See United States v. Hall 5 -9

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

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

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. , 5 - 12 briefcase, automobile) in an arrestee’s

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

The Fifth Amendment • The Fifth Amendment provides a privilege or protection against compelled testimonial selfincrimination – 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 5 - 14 trial about the defendant’s failure to testify

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 for the same offense 5 -prosecutions 15

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

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

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 5 - 18 the whistle on illegal corporate

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

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 5 - 20 computer to obtain customer lists