Criminal Law and Procedures CHAPTER 13 Criminal Law and Procedures

Introduction Criminal cases are prosecuted by public prosecutors Chief public prosecutor in federal criminal cases is called a U.S. attorney Most trials are conducted by assistant U.S. attorneys Some court-appointed defense lawyers work for organizations funded by the states, and are called public defenders

Defining Crime Key Differences between Civil Law and Criminal Law A crime is an offense against society as a whole Criminal defendants are prosecuted by public officials on behalf of the state Statutory basis Criminal law is primarily statutory law Learning Objective: The difference between crimes and other wrongful acts.

Defining Crime Key Differences between Civil Law and Criminal Law Standards of proof State must prove its case beyond a reasonable doubt Victimless crimes Criminal act does not necessarily involve a victim Learning Objective: The difference between crimes and other wrongful acts.

Defining Crime

Defining Crime Civil Liability for Criminal Acts Classifications of Crimes Felonies Serious crime that may be punished by imprisonment for more than one year Four degrees of felonies Misdemeanors Crime that may be punished by incarceration for not more than one year Petty offenses

Defining Crime Jurisdiction over Crimes State statutes define crimes, states have jurisdiction Federal jurisdiction extends to thousands of crimes Federal criminal jurisdiction applies to crimes that Occur outside jurisdiction of any state Involve interstate commerce or communications Interfere with operation of federal government Are directed at citizens or property located outside the United States

Elements of Criminal Liability To Be Convicted of a Crime, Two Elements Must Exist Performance of a criminal act Specified state of mind, or intent The Criminal Act Actus reus, guilty act State of Mind Mens rea, wrongful mental state What constitutes the wrongful mental state varies according to the action Learning Objective: The two elements that are required for criminal liability and some of the most common defenses that are raised in defending against criminal charges.

Elements of Criminal Liability Corporate Criminal Liability Corporation may be held liable for crimes committed by its agents and employees Responsible corporate officer doctrine

Elements of Criminal Liability Defenses to Criminal Liability The required mental state is lacking Protection of persons or property Defense of others Defense of property Statutes of limitations Other defenses Mistaken identity Alibi

Types of Crimes Violent Crime Property Crime Crimes against persons Each violent crime is further classified by degree Property Crime Burglary Larceny Obtaining goods by false pretenses Learning Objectives: Major categories of crimes and some common types of crimes.

Types of Crimes Property Crime Public Order Crime Receiving stolen goods Arson Forgery Public Order Crime Crimes that are contrary to public values and morals Learning Objectives: Major categories of crimes and some common types of crimes.

Types of Crimes White-Collar Crime Embezzlement Mail and wire fraud Bribery Bankruptcy fraud Theft of trade secrets Insider trading

Types of Crimes Organized Crime Money laundering The Racketeer Influenced and Corrupt Organization Act (RICO)

Cyber Crimes Cyber crimes are not “new” crimes; they are existing crimes in which the Internet is the instrument of wrongdoing Cyber Theft Financial crimes Identity theft Cyberstalking Hacking Prosecuting Cyber Crimes Jurisdiction issues are challenging

Social Media and Criminal Justice Use of Social Media Criminals are using social media to seek out victims and organize group criminal activity Flash mobs Law enforcement agencies are expanding their use of social media in solving crimes Smartphones and social media sites FBI’s YouTube channel MySpace

Social Media and Criminal Justice Proper Evidence Paralegals must determine whether information about clients can be protected from police investigators Does evidence deserve privacy protection? Password protection Reasonable expectation of privacy Reasonable suspicion or probable cause to investigate Evidence is reliable representation

Constitutional Safeguards Safeguards in the Bill of Rights Fourth Amendment Prohibits unreasonable search and seizure Requires showing of probable cause Fifth Amendment Due process of law Prohibits double jeopardy Privilege against compulsory self-incrimination Learning Objective: The constitutional rights of persons accused of crimes.

Constitutional Safeguards Safeguards in the Bill of Rights Sixth Amendment Speedy and public trial Trial by jury Right to confront witnesses Right to a lawyer at various stages Eighth Amendment Prohibits excessive bail and fines Prohibits cruel and unusual punishment

Constitutional Safeguards The Exclusionary Rule All evidence obtained in violation of rights is excluded from trial Fruit of the poisonous tree Deters warrantless searches and other misconduct Can lead to injustices Defendant can “get off on a technicality”

Constitutional Safeguards The Miranda Rule Miranda v. Arizona (1966) Arrested individuals must be informed of their rights Right to remain silent Right to counsel Miranda warning Not required until after in custody

Constitutional Safeguards

Criminal Procedures Prior to Prosecution Arrest and Booking Detention is not an arrest Probable cause A crime was committed The individual committed the crime Warrants Arrest warrant Search warrants When warrant is not needed Learning Objective: The basic steps involved in criminal procedure from the time a crime is reported to the resolution of the case.

Criminal Procedures Prior to Prosecution Investigation after the Arrest Find and interview witnesses Conduct searches (suspect’s home, car, etc.) Witnesses may view suspect in a lineup May decide to change the offense May release suspect with a warning or referral to a social service agency

The Prosecution Begins Prosecutorial Discretion Prosecutors have broad discretion Decide whether to pursue a case, what charges to file Resources are limited Allege as many offenses as possible Greater likelihood of a conviction Defendant may plead guilty to one in exchange for having others dropped Formally charges person before the court Learning Objective: How and why criminal litigation procedures differ from civil litigation procedures.

The Prosecution Begins Complaint and Initial Appearance Complaint is statement of charges being brought Initial appearance Defendant taken before judge or magistrate Bail Amount paid by defendant to court Insurance that defendant will show up as promised Bail bondsperson posts bail on defendant’s behalf, usually receives 10% of bail amount

The Prosecution Begins Preliminary Hearing Judge determines whether evidence is sufficient to establish probable cause First adversarial proceeding Paralegals may assist in preparation Information may be issued Formal charge against defendant

The Prosecution Begins Grand Jury Review Required by federal government, about half of states Group of citizens called to determine probable cause Indictment Decision that probable cause exists Also called a true bill

The Prosecution Begins Arraignment Defendant informed of charges Must respond with a plea Guilty Not guilty Nolo contendere Plea bargaining

The Prosecution Begins Pretrial Motions Motions to suppress Motions to dismiss Other common motions Motion for a change of venue Motion to rescue Motion to sever

The Prosecution Begins Discovery Criminal discovery is generally more limited Time constraints are different from civil litigation Prosecutor must hand over all evidence States vary on defense requirements to disclose Protection from self-incrimination

The Trial Only a small fraction of criminal cases go to trial Most defendants plead guilty to offense or lesser offense prior to trial Both sides have incentive to negotiate a plea Most criminal trials last less than a week A few major procedural differences between criminal trials and civil trials

The Trial The Presumption of Innocence Prosecutor bears burden of proving defendant guilty High standard of proof The Privilege against Self-Incrimination Defendant does not have to testify at trial The Right to a Speedy Trial The Requirement for a Unanimous Verdict Jury verdict must be unanimous for acquittal Hung jury

The Trial Sentencing Limited role of jury Range of penalties Jury not involved in sentencing unless death sentence is sought Range of penalties Most criminal statutes set forth a maximum and minimum penalty for a violation Incarceration Probation Combination of penalties Types of probation

The Trial Diversion Appeal

Summary Crimes are distinguished from civil wrongs in several ways Those who commit crimes may be subject to both criminal and civil liability. Crimes fall into two basic classifications: felonies and misdemeanors.

Summary Most crimes fall under state statutes and state prosecution, but there is a long list of federal criminal acts, too. For criminal liability to exist, the state must meet certain standards of proof. The five traditional major categories of crimes are violent crime, property crime, public order crimes, white-collar crime, and organized crime.

Summary Cyber crimes are crimes that are committed with computers and occur in cyberspace. Social media tools are being used increasingly by law enforcement authorities. Criminals are also making greater use of social media tools. Specific procedures must be followed in arresting and prosecuting a criminal suspect to safeguard the suspect’s constitutional rights.

Summary The initial procedure undertaken by the police after a crime is reported or observed includes steps that must be followed properly in order for a case to proceed. Police make a report of the alleged crime to a public prosecutor. The prosecutor decides, based on a review of the evidence, if the case should proceed or the accusations be dropped.

Summary Most criminal cases are settled before they get to trial. Most criminal trials last less than one week and are similar to civil trials, except in a few major ways.