CHAPTER 8 - CHAPTER 8 CHAPTER 8 CRIME TODAY IN THE...

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Unformatted text preview: CHAPTER 8 CHAPTER 8 CRIME TODAY IN THE NEWS…… “The popular online social networking site Facebook helped lead to an alleged burglar’s arrest after he stopped check his account on the victim’s computer, but forgot to log out before leaving the home with two diamond rings. Jonathan G. Parker, 19, of Fort Loudoun, Pa., was arraigned Tuesday one count of felony daytime burglary. The victim told police that someone had broken into her home through a bedroom window. There were open cabinets in her garage, and other signs of a burglar. The victim later noticed that the intruder also used her computer to check his Facebook status, and his account was still open when she checked the computer.” STUPID CRIMINALS STUPID CRIMINALS CRIME, SOCIETY AND LAW CRIME, SOCIETY AND LAW Criminal behavior extends far beyond the street crime that is fodder for television dramas—white collar crime has a greater economic impact than street crime. Criminal law differs in important ways from civil law, the subject of most of the text: the state prosecutes the wrongdoer, the wrongdoer can face lengthy imprisonment or death, and rights embedded in the Constitution protect individuals accused by the state of criminal behavior. CRIME, SOCIETY AND LAW CRIME, SOCIETY AND LAW Civil Law/Criminal Law Most of what we have considered so far has been civil law Conduct is criminal when society outlaws it Prosecution Jury Right The government prosecutes crimes Punishment A criminal defendant has a right to a trial by jury for any charge that could result in a sentence of six months or longer Government asks the court to find the defendant guilty of the crime The government wants the defendant punished If found guilty court will impose fines/prison sentence If court is not convinced of guilt, defendant will be acquitted A felony is a serious crime, for which a defendant can be sentenced to one year or more in prison A misdemeanor is a less serious crime, often punishable by a year or less in county jail. Felony/Misdemeanor Civil Law vs. Criminal Law Civil Law vs. Criminal Law Civil law concerns the rights and liabilities between private parties; criminal law concerns those activities that society has outlawed. Procedure for criminal trial ­­ government decides whether to prosecute; defendant has the right to a jury trial. In a criminal suit, the court determines the guilt, so that a punishment can be given. A felony is a serious crime, with a sentence of one year or more in prison. A misdemeanor is less serious, often with a sentence of less than a year. CRIME, SOCIETY AND LAW CRIME, SOCIETY AND LAW Punishment Restraint Deterrence A violent criminal who appears likely to commit more crimes must be physically restrained Recidivism is the act of a person repeating an undesirable behavior after they have either experienced negative consequences of that behavior, or have been treated or trained to extinguish that behavior. It is also known as the percentage of former prisoners who are rearrested. Specific deterrence is intended to teach this defendant that crime carries a heavy price tag, in the hope that he will never do it again General deterrence is the goal of demonstrating to society generally that crime must be shunned CRIME, SOCIETY AND LAW CRIME, SOCIETY AND LAW Retribution Give the criminal what he or she deserves Vengeance is a concept related to retribution Rehabilitation Training so that the criminal may return to a normal life CRIME, SOCIETY AND LAW CRIME, SOCIETY AND LAW The United States Department of Justice tracked the rearrest, re­ conviction, and re­incarceration of former inmates for 3 years after their release from prisons in 15 states in 1994. Key findings include: Released prisoners with the highest rearrest rates were robbers (70.2%), burglars (74.0%), larcenists (74.6%), motor vehicle thieves (78.8%), those in prison for possessing or selling stolen property (77.4%), and those in prison for possessing, using, or selling illegal weapons (70.2%). Within 3 years, 2.5% of released rapists were arrested for another rape, and 1.2% of those who had served time for homicide were arrested for homicide. These are the lowest rates of re­arrest for the same category of crime. The 272,111 offenders discharged in 1994 had accumulated 4.1 million arrest charges before their most recent imprisonment and another 744,000 charges within 3 years of release. CRIME, SOCIETY AND LAW CRIME, SOCIETY AND LAW Former criminals rose to become some of America's greatest leaders in law, industry, and politics. This possibility seems to be narrowing as criminal records become electronically stored and accessible. Certain organizations are currently working towards lowering recidivism rates through the re­integration of ex­detainees into society by helping them obtain work, teaching them various societal skills, and by providing all­around support. CRIME, SOCIETY AND LAW CRIME, SOCIETY AND LAW The Prosecution’s Case Conduct Outlawed Must show to court that defendant’s conduct is in fact outlawed The government must prove its case beyond a reasonable doubt The “guilty act” The prosecution must prove that the defendant voluntarily committed a prohibited act Burden of Proof Actus Reus CRIME, SOCIETY AND LAW CRIME, SOCIETY AND LAW Mens Rea A “guilty state of mind” What state of mind must be proven varies based on the crime General Intent Specific Intent The defendant intended to do the prohibited physical action (the actus reus) For most crimes the prosecution proves criminal intent by proving that the defendant committed the forbidden act. For example, in Miller’s trial for criminal assault for smashing a beer bottle over Bud’s head, the prosecution proves Miller’s intent by proving that he purposely picked up the bottle and hit Bud with it. The prosecution need not prove what was actually going on in Miller’s mind. Must show that the defendant willfully intended to do something beyond the physical act Criminal recklessness means consciously disregarding a substantial risk of injury Criminal negligence refers to gross deviations from reasonable conduct The prosecution must only prove actus reus If defendant did the act, then he or she is guilty Reckless or Negligent Conduct Strict Liability Cheek v. United States (1991) CRIME, SOCIETY AND LAW CRIME, SOCIETY AND LAW Defenses Insanity A defendant who can prove that he was insane at the time of the criminal act will be declared not guilty M’Naughten Rule Bieber v. People (1993) Jury Role Defendant must show He suffered a serious, identifiable mental disease and that because of it He did not understand the nature of his act or did not know that it was wrong Juries are reluctant to acquit based on insanity Surprisingly, most defendants acquitted by reason of insanity spend more time in a mental hospital than convicts spend in prison for the same act Bieber v. People – p. 178 Bieber v. People – Facts: Donald Bieber walked up to a truck in which William Ellis was sitting and shot Ellis, whom he did not know, in the back of his head. He threw Ellis’s body from the truck and drove away. Shortly before and after the killing, Bieber encountered various people in different places. He sang “God Bless America” and the “Marine Hymn” to them and told them he was a prisoner of war and was being followed by communists. He said he had killed a communist on “War Memorial Highway.” The police arrested him. Bieber had a long history of drug abuse, including amphetamines, and dealt drugs as an adult. Several years before the homicide, Bieber feared he would hurt someone and voluntarily entered a hospital for treatment for mental impairment. He was later released into a long­term drug program. Bieber was charged with first degree murder. He pleaded not guilty by reason of insanity. An expert witness testified that he was insane, suffering from “amphetamine delusional disorder” (ADD), a recognized psychiatric illness resulting from long­term use of amphetamines and characterized by delusions. At trial, Bieber’s attorney argued that he was not intoxicated at the time of the crime but that he was insane due to ADD. The trial court refused to instruct that Bieber could be legally insane due to ADD, and the jury found Bieber guilty of first degree murder. He appealed. You Be the Judge: May a jury find that a defendant with ADD is legally insane? Bieber v. People – p. 178 Bieber v. People – Holding: The court affirmed Bieber’s conviction. The “argument” for the state, which appears in the text, comes nearly verbatim from the court's decision. Question: If the court had reversed the conviction would Bieber have gone free? Answer: No. There would have been another trial in which he could plead insanity to a jury. Question: Suppose a defendant goes to a bar, gets blind drunk, and then goes out and robs a store. Is his intoxication a defense to the robbery? Answer: No. In most states, voluntary intoxication is no defense to a crime. Some states may admit voluntary intoxication as evidence that the defendant could not form the specific intent necessary for certain crimes. For example, a defendant charged with assault with intent to kill might seek to demonstrate a degree of intoxication that prevented his forming the intent to murder. This is a separate issue from the general point the court makes in Bieber: intoxication is generally no defense. Question: Since voluntary intoxication is not a defense to a crime, why does Bieber even bother to raise his drug use? Answer: Bieber acknowledges that voluntary intoxication is no defense. He is not arguing that he was intoxicated. He is attempting to make a different defense. Bieber v. People – p. 178 Bieber v. People – Question: What does drug use have to do with insanity? Answer: Bieber's argument is that prolonged drug use left him afflicted with ADD, an established psychiatric ailment. Question: Half the kids I went to school with were diagnosed with ADD! That qualifies them for an insanity defense? Answer: No. Don’t confuse Attention Deficit Disorderwith Amphetamine Delusional Disorder. Question: Why didn’t Bieber’s argument persuade the court? Answer: Because his drug use was voluntary. Whatever mental disease it caused, Bieber brought it upon himself through his years of amphetamine abuse. Question: But he probably didn’t know he’d wind up with ADD when he started to take amphetamines, so how can his mental disease be voluntary? Answer: It does not matter that he did not know ADD might be a result of his drug use. There is a reason some drugs are illegal—they are bad for you. If you abuse illegal drugs then the law probably will not excuse you from whatever actions you take after suffering their effects. CRIME, SOCIETY AND LAW CRIME, SOCIETY AND LAW Entrapment When the government induces the defendant to break the law, the prosecution must prove beyond a reasonable doubt that he defendant was predisposed to commit the crime Jacobson v. United States (1992) the defense of duress applies when the accused has a (1) reasonable apprehension that (2) the accused or another innocent person would (3) immediately suffer death or serious bodily injury if the accused did not commit the act; a reasonable apprehension does not exist if the accused has any reasonable opportunity to avoid committing the act without subjecting himself or another innocent person to the harm threatened Duress CRIMES THAT HARM BUSINESS CRIMES THAT HARM BUSINESS Larceny Fraud The trespassory taking of personal property with the intent to steal it “Trespassory taking” means someone else originally has the property Fraud refers to various crimes, all of which have a common element: deception of another person for the purpose of obtaining money or property from him Wire fraud and mail fraud involve the use of interstate mail, telegram, telephone, radio, or television to obtain property by deceit Insurance fraud is another type of fraud Medicare fraud includes using false statements, bribes, or kickbacks to obtain Medicare payments from the federal or state government Arson The malicious use of fire or explosives to damage or destroy any real estate or personal property It is both a federal and a state crime CRIMES THAT HARM BUSINESS CRIMES THAT HARM BUSINESS On March 12, 2009, Bernard Madoff pleaded guilty to 11 federal offences, including securities fraud, wire fraud, mail fraud, money laundering, and perjury, and making false filings with the SEC. His guilty plea came in response to a criminal complaint filed two days earlier, which stated Madoff had defrauded his clients of almost $65 billion in what it described as the largest Ponzi scheme in history. CRIMES THAT HARM BUSINESS CRIMES THAT HARM BUSINESS Embezzlement The fraudulent conversion of property already in the defendant’s possession Computer Crime A rapidly growing area of crime that can have devastating consequences for businesses Identity theft Computer Crime Statutes The Computer Fraud and Abuse Act – prohibits using a computer to commit theft, espionage, trespass, fraud and damage to another computer. The Access Device Fraud Act – outlaws the misuse of cards, codes, account numbers, etc. The Identity Theft and Assumption Deterrence Act – bars the use of false identification to commit fraud or other crime. The Wire and Electronic Communications Interception Act – makes it a crime to intercept most wire, oral and electronic communications. Identity Theft Identity Theft– using someone else’s personal information to gain access to their financial accounts. This crime is growing explosively. Thieves steal personal information from company files, find it in garbage or mail or obtain it through fraudulent means. Thieves may open new accounts, drain current accounts and use your name in police investigations. Victims should notify police, credit bureaus, the Federal Trade Commission, and all account providers. United States v. Dragon – p. 184 United States v. Dragon Facts: Dragon and Durham were stopped by officers after the officer received a complaint about a black Lexus, and then observed a black Lexus driving erratically. After pulling the car over, the officer questioned Durham about the Macy’s bags in the back seat. During the questioning, Durham changed his story about the bags. Dragon and Durham were arrested after a check revealed that they both had two outstanding warrants. A search of the car revealed the following: several fake New York State non­driver identification cards with pictures of Durham and Dragon, but using different names; records from Mount Sinai Medical Center listing names that matched those on the identification cards, plus addresses, birth date, and social security numbers; receipts from Macy’s in New Jersey, New York, and Pennsylvania; nineteen boxes of Timberland boots; five Macy’s shopping bags containing new merchandise; two cellular phones, and twenty­eight small glassine bags. Dragon confessed to a scheme whereby Durham obtained personal information from patients at Mount Sinai hospital, and they both obtained false identification cards using the patient information. The pair them used the identification cards to charge merchandise and gift cards to the real account­holders at Macy’s stores in New Jersey, New York, and Pennsylvania. Shalon Dragon was convicted of identity theft, and sentenced to 44 months in prison. He appealed claiming the sentence was too harsh. Issue: Did Dragon’s identity theft warrant this sentence? United States v. Dragon – p. 184 United States v. Dragon Holding: Yes, judgment affirmed. The District Court imposed a 44­ month sentence, noting the complexity of the scheme and the harm caused to victims of identity theft. Although the court acknowledged Dragon’s request for more lenient sentence, in imposing the higher sentence the court emphasized Dragon’s “long history of fraudulent criminal conduct and the fact that Dragon had been given ‘a second chance’ by various courts ‘over and over again’”. Because of his failure to take advantage of this leniency, the District Court thought it was necessary to sentence Dragon to “a serious term of imprisonment.” The Court of Appeals also noted that based on the record, it was clear that the District Court gave careful consideration to the higher sentence, and the Appellate must afford that decision great deference because the trial court is in the best position to determine the appropriate sentence. United States v. Dragon – p. 184 United States v. Dragon Question: Will the court order Dragon to repay the victims of his crime? Answer: The court has the power to order restitution. We don’t know whether it did in this case, and, in any event, restitution is only effective if the criminal defendant has the money to pay it. Question: Why did the court make a point of saying that the trial court was in the best position to impose a sentence in his case? Answer: Because Appellate courts, like the court in this case, do not hear testimony. They base their decisions on the record of the trial, the briefs of the lawyers, and their oral argument. The trial court heard first hand all of the witness testimony and other evidence. Based on this, the trial court is in a better position to make decisions about the facts of the case. Crimes Committed by Business If someone commits a crime within the scope of his employment and to benefit the corporation, the company is liable. Punishment down the company temporarily or permanently. Fines ­­ appropriate since this hurts the profit. Imprisonment? ­­ yes, in the sense of closing Compliance programs ­­ if a company has a valid, functioning plan to prevent and detect criminal behavior, the judge must (according to Federal Sentencing Guidelines) reduce the penalty of a crime of an employee. Facts: Brain Gauthier was an experienced truck driver who worked for Todesca, a paving company. Gauthier noticed that the back­up alarm on the truck he was driving was broken. He reported it to the company, and the mechanic realized that the alarm needed to be placed, but there were none in stock. The company told Gauthier to continue driving the truck without the alarm. About a month later, Gauthier and other Todesca drivers were delivering asphalt to a work site at an entrance to a mall. A police officer directed mall traffic and the construction vehicles. The trucks had to back through the intersection. All of the other truckers had back­up alarms. When it was Gauthier’s turn to back up, he struck and killed the officer. The state charged the company with motor vehicle homicide. The jury found the company guilty and the judge imposed a fine of $2,500. Issue: Could the company be guilty of motor vehicle homicide? Commonwealth v. Angelo Todesca Commonwealth v. Angelo Todesca Corp. – p. 185 Commonwealth v. Angelo Todesca Commonwealth v. Angelo Todesca Corp. – p. 185 Holding: Yes, conviction affirmed. According to the court, in order to find a corporation guilty, the Commonwealth must prove that Gauthier was in a position to act on behalf of the corporation, and that he was acting on behalf of Todesca at the time he committed the criminal act. Todesca argues that a corporation can never be found guilty of motor vehicle homicide because a “corporation” cannot “operate” a motor vehicle. However, by that logic, according to the court, a corporation would never be guilty of any crime. Only human agents, acting on behalf of the corporation, are capable of operating a motor vehicle. Nevertheless, the court has consistently held that a corporation may be criminally liable for the acts of its agents, if the agents are acting within the scope of their employment and on behalf of the corporation. Here, it clear that the back­up alarm on Gauthier’s truck was not working properly at the time of the collision. Although an alarm is not required by law, Todesca’s safety policy requires alarms on all of its trucks. Gauthier’s violation of this safety policy is negligent, for which Todesca could be held liable. Also, Todesca’s policy was to install back­up alarms on all of its trucks. The other Todesca trucks at the site had working alarms. The jury could have inferred that the victim, a veteran police officer, knew that Todesca’s policy was to have back­up alarms on their trucks, and that the victim expected to hear the alarm when the truck backed­up. The jury could also have inferred that an alarm on Gauthier’s truck would have alerted the victim that the truck was moving in reverse in time for the victim to have gotten out of the way, and that the victim did not realize Gauthier’s truck was backing up because he did not hear the alarm. Crimes Committed by Business Occupational Safety and Health Act OSHA sets standards for safety in the Racketeer Influenced and Corrupt Organization Act with a series of illegal acts. workplace. A state may set standards tougher than OSHA. Creates both civil and criminal law liabilities. Is aimed at organized crime ­­ those involved Money Laundering ­­ using the profits of criminal acts to promote more crime or concealing an illegal source of money. Commonly associated with the illegal drug trade. RICO CRIMES COMITTED BY CRIMES COMITTED BY BUSINESS The Racketeer Influenced Corrupt Organizations Act (RICO) is one of the most powerful and controversial statutes ever written Designed initially to deal with organized crime Expanded to ordinary businesses Creates both civil and criminal law liabilities Government can prosecute individuals and organizations Plaintiffs can recover treble damages (three times the harm actually suffered) RICO prohibits using two or more racketeering acts to accomplish any of these goals: (1) investing in or acquiring legitimate businesses with criminal money; (2) maintaining or acquiring businesses through criminal activity; or (3) operating businesses through criminal activity. CRIMES COMITTED BY CRIMES COMITTED BY BUSINESS Two step process for a RICO case Must show the defendant committed two or more racketeering acts, which are a long list of specified crimes (embezzlement, arson, mail fraud, wire fraud, and so forth) Must show that the defendant used these racketeering acts to accomplish one of the three purposes already discussed Money Laundering Money laundering consists of taking the proceeds of certain criminal acts and either (1) using the money to promote crime, or (2) attempting to conceal the source of the money Environmental, Antitrust, Securities Fradu Other Crimes United States v. Kennard p. 189 United States v. Kennard Facts: The reverend Abraham Kennard bilked hundreds of churches out of millions of dollars through a phony grant scheme. Abraham created the Network International Investment Corporation and then approached churches and other nonprofits with an offer: for every $3,000 in membership fees that an organization paid to the Network, the Network would award $500,000 in grants. Abraham told investors that the grants were possible because he had secured wealthy investors who would provide financing, and that the Network expected to earn a profit from its Christian resorts. More than 1,600 churches and other nonprofits paid Abraham over $8.7 million. Abraham deposited the money into an escrow account in the name of his lawyer, and then transferred the money into another account in the name of Promotional Times International, Ltd., which was controlled by Abraham’s brother Laboyce Kennard. The investors never received their money and Abraham was found guilty of various crimes. Laboyce was found guilty of money laundering. He appealed, arguing there was insufficient proof that he knowingly laundered money. Issue: Was there sufficient evidence that Laboyce knowingly laundered money? United States v. Kennard p. 189 United States v. Kennard Holding: Yes, conviction affirmed. Laboyce claims that there was not enough evidence for a jury to find beyond a reasonable doubt either the existence of a criminal agreement or his knowing participation in it. To convict Laboyce on the money laundering conspiracy charge, the prosecution had to prove that some agreement existed to launder the proceeds of Abraham’s fraud scheme, and that Laboyce knowingly participated in that agreement. The extent of Laboyce’s knowledge of the details in the conspiracy does not matter if the prosecution can show that he knew the essential objectives of the conspiracy. There was sufficient evidence to prove that Laboyce knowingly participated in the agreement to launder the proceeds from Abraham’s fraud. Laboyce set up the Promotional account and made large deposits to that account of cashier’s checks from Abraham and checks drawn on the escrow account. Laboyce made most of the withdrawals from the Promotional account including cashier’s checks made payable to Abraham. Laboyce was also involved in Network events. For example: Laboyce went with Abraham to a Network meeting in Charlotte, North Caroline at which Abraham gave Network members fake checks instead of the promised grant money; Laboyce videotaped Abraham at a fake groundbreaking ceremony for a Network resort which was used to hold off member complaints; Laboyce “worked security” at a Network meeting where Abraham told the members their grants would be delayed again; and Laboyce was present at a meeting where Abraham told him that an FBI investigation of the Network led to a seizure of the escrow account. This evidence, according to the court, was enough for a jury to find beyond a reasonable doubt that Laboyce knowingly participated in the conspiracy to launder the proceeds of the fraud. Constitutional Protections No matter what crime a suspect is accused of, the Constitution of the United States offers protection against inhumane treatment and ensures certain human rights. The procedures by which a suspect is investigated, arrested, interrogated and tried is controlled by the Bill of Rights. Almost all important criminal procedure rights have been expanded beyond the federal government to law enforcement at the state and local level. The Criminal Process CONSTITUTIONAL CONSTITUTIONAL PROTECTIONS Informant Warrant People may come forward to law enforcement May sign an affidavit (a written statement signed under oath) A search warrant is written permission from a neutral official, such as a magistrate, to conduct a search A warrant must specify with reasonable certainty the place to be searched and the items to be seized Warrant will be issued only if there is probable cause Probable cause means that based on all of the information presented it is likely that evidence of crime will be found in the place mentioned Probable Cause CONSTITUTIONAL CONSTITUTIONAL PROTECTIONS Search and Seizure The search may not exceed what is described in the warrant Arrest warrants may be issued as well Booking – name, photograph and fingerprints are entered in a log, along with the charges Defendant is entitled to a prompt bail hearing Atwater v. Lago Vista, Texas (2001) Arrest CONSTITUTIONAL CONSTITUTIONAL PROTECTIONS Indictment Grand jury – group of ordinary citizens, like a trial jury, but the grand jury holds hearings for several weeks on lots of different cases It is the grand jury’s job to determine if there is probable cause that this defendant committed the crime with which she is charged An indictment is the government’s formal charge that the defendant committed a crime and must stand trial Defendant brought to court and charges read against them Plea entered Arraignment CONSTITUTIONAL CONSTITUTIONAL PROTECTIONS Discovery Motion to suppress Less formal than in a civil trial If the defense claims that the prosecution obtained evidence illegally, it will move to suppress it A motion to suppress is a request that the court exclude certain evidence because it was obtained in violation of the Constitution An agreement between prosecution and defense that the defendant will plead guilty to a reduced charge, and the prosecution will recommend to the judge a relatively lenient sentence Similar to a civil trial Beyond a reasonable doubt Appellate process is similar to the civil appeals process Plea Bargaining Trial and Appeal CONSTITUTIONAL CONSTITUTIONAL PROTECTIONS The Fourth Amendment The Fourth Amendment prohibits the government from making illegal searches and seizures In general, the police must obtain a warrant before conducting a search Plain view ­­ the evidence is not concealed. Stop and Frisk ­­ may search a suspect if there is good reason to believe he may be armed. Emergencies ­­ such as in a chase; suspect may be searched. Automobiles ­­ if lawfully stopped for other reasons, and evidence is visible, police may search entire car. Lawful arrest ­­ anyone arrested may be searched. Consent ­­ if consent is given by the lawful occupant of the home, police may search it. There are six situations in which police may search without a warrant. A search WITH a warrant is unlawful, if: There was no probable cause. Fourth Amendment Exclusionary Rule The warrant did not specify place or items. It extended beyond the scope of the warrant. Evidence obtained illegally (without a warrant or improperly obtained with a warrant) may not be used at trial against the victim of the search. The purpose of the exclusionary rule is to make sure that the police follow proper procedures when conducting a search. CONSTITUTIONAL CONSTITUTIONAL PROTECTIONS Exclusionary Rule Under the exclusionary rule, evidence obtained illegally may not be used at trial against the victim of the search Will use a motion to suppress Evidence may be excluded Exceptions Inevitable discovery Good faith exception CONSTITUTIONAL CONSTITUTIONAL PROTECTIONS Question: How can it possibly make sense to exclude legitimate evidence because a police officer made a mistake in getting a warrant? Aren't we letting the criminal go free because the constable blundered? Answer: The Supreme Court has created the exclusionary rule as a judicial remedy to protect all citizens from potential police abuse. The theory is that if the police know in advance that illegally seized evidence cannot be used at trial, they will have no motive to obtain such evidence, and will go about their investigations lawfully. Question: Does the Supreme Court think that all police want to abuse the average citizen? Answer: No. What the court has said, by crafting the rule, is that one of the most valuable things there is about living in a democratic society is the ability to live without fearing the police. We should be able to sleep at night without worrying that our doors will be smashed in. Question: The difference between a lawful search or arrest and an unlawful one is often a warrant. What is so special about a warrant? Answer. The warrant requirement means that the police must obtain the permission of a neutral person before conducting most searches or making most arrests. Because the police are charged with responsibility to investigate crimes, they may have a vested interest in conducting investigations as aggressively as possible. The warrant requirement means that someone who has no personal interest in the investigation must first be convinced that there is probable cause to search some premises or make an arrest. CONSTITUTIONAL CONSTITUTIONAL PROTECTIONS Question: What might happen if there was no requirement for probable cause? Answer: For example, police might reason that a certain percentage of students at a large university use illegal drugs, and that therefore it would be profitable to stake out the campus and search everyone who enters it. Even if only a tiny percentage of students are carrying drugs, it might prove a good way to catch criminals. The problem is that all of the innocent people would be forced to endure periodic searches. Question: What is wrong with being searched if you don't have anything to hide? Answer: Being searched is—by definition—invasive. Some people might not mind it, but there are many who do not want to feel that they live in a police state. Also, to allow police to search without a warrant is to give them tremendous power, which some officers might abuse. For example, a particular policeman might choose to search only minorities, or women, or students, or those living in a particular neighborhood. Ours is supposed to be a society regulated by law, not by personal, police power. Question: How many people go free because of the exclusionary rule? Answer: Very few. As the text reports, most studies have shown that less than 1 percent of those prosecuted go free because evidence is excluded. Courts deny the great majority of motions to suppress, and in those few cases where they are allowed, the prosecution generally has additional evidence sufficient to convict. Passed after Sept. 11 attacks; gives police greater search and investigative powers. Opponents claim it also threatens privacy and The Patriot Act of 2001 individual freedoms. The courts are facing questions about the legitimacy of the Patriot Act. One court allowed the government to use secret evidence against an organization suspected of terrorist activity. Another court struck down a provision of the Act that would have allowed the government to seize records from communications service providers such as phone and internet companies, without a warrant and without notifying Fifth Amendment Protections Fifth Amendment Protections The Fifth Amendment Due Process Requires fundamental fairness at all stages of the case Prosecution must disclose evidence favorable to the defendant Lineups have to be reasonable A criminal defendant may be prosecuted only once for a particular criminal offense Bars the government from forcing any person to testify against himself Double Jeopardy Self­Incrimination Fifth Amendment Protections Fifth Amendment Protections Miranda In Miranda v. Arizona the Supreme Court ruled that a confession obtained from a custodial interrogation may not be used against a defendant unless he was first warned of his Fifth Amendment rights Custodial interrogation means that the police have prevented the defendant from leaving (usually be arresting him) and are asking him questions Defendant must be told Exclusionary Rule Right to remain silent Anything he says can be used against him at trial He has the right to a lawyer; and If he cannot afford a lawyer, the court will appoint one for him If warnings aren’t given, confession is excluded OTHER CONSTITUTIONAL OTHER CONSTITUTIONAL PROTECTIONS The Sixth Amendment Guarantees the right to a lawyer at all important stages of the criminal process Lawyer must be appointed if one can not be afforded Prohibits cruel and unusual punishment. Capital punishment has been controversial under this amendment. “Three strikes” laws have created situations where a punishment is excessive for the crime. Forfeiture (forced loss of property) has been allowed under this amendment, but the allowable amount has not been set. The Eighth Amendment Ewing v California – p. 199 Facts: California passed a “three strikes” law, dramatically increasing sentences for repeat offenders. A defendant with two or more serious convictions, who was convicted of a third felony, had to receive an indeterminate sentence of life imprisonment. Such a sentence required the defendant to actually serve a minimum of 25 years, and in some cases much more. Gary Ewing, on parole from a 9­year prison term, stole three golf clubs worth $399 each, and was prosecuted. Because he had prior convictions, the crime, normally a misdemeanor, was treated as a felony. Ewing was convicted and sentenced to 25 years to life. He appealed, claiming that the sentence violated the Eighth Amendment. Issue: Did Ewing’s sentence violate the Eighth Amendment? Ewing v California – p. 199 Holding: No. Excerpts from Justice O’Connor’s opinion: When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. The Eighth Amendment does not prohibit California from making that choice and precedent establishes that States have a valid interest in deterring and segregating habitual criminals. According to a recent report, approximately 67 percent of former inmates released from state prisons were charged with at least one "serious" new crime within three years of their release. In particular, released property offenders like Ewing had higher recidivism rates than those released after committing violent, drug, or public­order offenses. Critics have doubted the law's wisdom, cost­efficiency, and effectiveness in reaching its goals. This criticism is appropriately directed at the legislature, which has primary responsibility for making the difficult policy choices that underlie any criminal sentencing scheme. In imposing a three strikes sentence, the State's interest is not merely punishing the offense of conviction, or the "triggering" offense: it is in addition the interest in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law. Ewing's sentence is justified by the State's public­safety interest in incapacitating and deterring recidivist felons. Ewing has been convicted of numerous misdemeanor and felony offenses, served nine separate terms of incarceration, and committed most of his crimes while on probation or parole. Ewing’s sentence, albeit a long one, reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated. ...
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