Power of Attorney Statutory Short Form Connecticut by nyh16106


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									CHAPTER 5

Crime = Public Wrongs

• Felony
  – Serious Offenses (e.g. murder, rape, arson)
  – Generally Punishable by Long Confinement
    (some offenses, in some jurisdictions, by
  – May result in Disenfranchisement (Lost of certain
                                U.S. Felony
                          Conviction Rates(2000)

          Motor Vehicle Theft
              Weapons Offense
                 Drug Trafficking
                   Driving Offense

                                                 0%           10%           20%           30%   40%   50%   60%   70%

Source: U.S. Dept. Of Justice, Office Of Justice Programs, Bureau Of Justice Statistics
Crime = Public Wrongs
• Misdemeanors
 – Lesser Offenses (e.g. traffic
   offenses, disorderly conduct)
 – Generally Punishable by Fines or
   Short Confinement
Essentials of a Crime

1) Commission of an Act (actus reus)

2) For which there existed a prior Prohibition
   (usually Statutory, though in some cases my be
   Common Law
    – (i.e. no-Ex post facto)
Essentials of a Crime
• 3) Criminal Intent (Mens Rea)
   – 1. Intentional = either purposeful or knowing:
       • Purposeful: Conscious object was to engage in the conduct or
         cause the result.
       • Knowing: He was aware that his conduct was of a prohibited type or
         was practically certain to cause a prohibited result.
   – or 2. Reckless = Conscious disregard of a substantial and
     unjustifiable risk that was either prohibited or would cause
     a prohibited result.
   – or 3. Negligent = Failure to perceive a substantial risk of
     harm that a reasonable person would have perceived.

   – Not apply for certain crimes (e.g. statutory rape)
   – Maybe inferred from actions
   – First Degree generally requires premeditation
Criminal Intent
    Essentials of a Crime
•    Note: Some Crimes Require Only the
     Wrongful Act (Proof of intent is not
•    For Example:
    – Corporate air and water pollution
    – Inaccurate weights and measures
    – Sale of adulterated food
    – Sale of narcotics to someone who
      doesn‘t have a prescription
    – Sale of alcoholic beverages to a minor
Essentials of Crime
• 4) Capacity
   – M‘Naghten standard (a person is not responsible if, at the
     time of the offense, he did not know the nature and quality
     of his act, or if he did know it, he did not know that his act
     was wrong)

   – Voluntary Intoxication
       • Generally not a complete defense
       • But may diminish the degree of the defendant‘s liability.
   – Juvenile status
       • At common law, children younger than 14 years old could not
         form criminal intent.
       • Most jurisdictions still have a special status for juvenile
       • But repeat offenders, and those charged with very serious
         offenses may be treated as adults.
Essentials of Crime

• 4)Capacity (cont.)
   – Insanity
       • at time of act = no liability
       • at time of trial = delay
       • after trial but before sentencing = delay
       • The Supreme Court has found that States may
         establish a presumption that defendant is competent
         to stand trial and make the defendant prove that he
         isn‘t. (see Medina v California, 1992).
       • Juries tend to be hostile to the insanity defense
Essentials of Crime
• The idea behind capacity is that we want
  to punish the willful wrongdoer: an
  essentially moral idea.
  – Is it moral to execute children who have murdered
    others? (see, Stanford v. Kentucky, 109 S. Ct. 2926
    (1989)), or the mentally retarded (see, Penry v.
    Lynaugh, 109 S.Ct. 2934 (1989))? Recently disallowed
    by U.S. Supreme Court in Roper, Superintendent,
    Potosi Correctional Center v. Simmons (2005)
  – (see: http://www.mindfully.org/Reform/2005/Death-
     Criminal Procedure

Criminal cases are brought in the
name of the state, by the state‘s
representative: e.g. the District
Attorney in state cases and the United
States Attorney in federal cases.
The prosecutor‘s power to decide who
will be prosecuted for crime makes
him or her one of the most powerful
persons in the criminal justice system.
Criminal Procedure
•   Arrest
•   Booking
•   Initial appearance
•   Preliminary hearing to
    determine probable
•   Indictment or
•   Arraignment
•   Trial
       Criminal Procedure

Initial Appearance & Preliminary Hearing
  –   Presided over by a ―magistrate‖ or
  –   Defendant is usually entitled to be represented
      by counsel
  –   Preliminary hearing: Is there probable cause to
      believe the defendant committed the crime?
        Criminal Procedure
•   Indictment or Information
    – The federal system and about 1/2 of
      the states require an indictment from
      a grand jury for all felony
    – All others require an information or
      formal accusation of a crime from a
         Criminal Procedure
•   Arraignment
    –    Occurs in front of the trial court
    –    Defendant may enter various motions
    –    Defendant enters his plea
        • If he enters a plea of not guilty, he must
           stand trial
        • If he enters a plea of guilty, the judge may
           sentence him or set a later hearing for
           Criminal Procedure Protections
•   4th- Protection against unreasonable searches & seizures
      – Exclusionary Rule: Illegally obtained evidence inadmissible (Recent Local Example)
      – Porn, theft charges likely to be dropped: Judge says search by police illegal
         Last year, Carrboro police arrested Andrew Douglas Dalzell on theft and pornography charges but doctored another arrest
         warrant to make it look like they were picking him up for the 1997 murder of Deborah Leigh Key.Dalzell, now 28,
         confessed, but a judge ruled Dalzell's admission was coerced, and the district attorney dismissed the murder charges.
         Still, the charges that Dalzell stole a credit card number, took paint and figurines from an employer and downloaded child
         pornography remained. Until Thursday, when a judge ruled that Carrboro police also illegally collected evidence for the
         theft and pornography charges. As a result, Orange-Chatham District Attorney Jim Woodall said he will likely drop those
         remaining charges today. "The Carrboro Police Department ... took some chances and came up with a plan to try to make
         a break in the [murder] case," Woodall said. The plan would have worked, because Dalzell did confess to killing Key, he
         added. "It's just along the way many mistakes have been made preventing us from pursuing the case," he said. Carrboro
         police went on an illegal "fishing expedition" when they searched the murder suspect's apartment with a search warrant
         looking for stolen hobby goods last year, Superior Court Judge Howard Manning wrote in his decision, filed Thursday. For
         example, police seized a leather jacket because they thought it might be evidence in the murder investigation, even
         though the jacket wasn't listed on the search warrant. North Carolina law requires a search warrant to specify what items
         police are looking for, where they expect to find them and their relevance to a crime. But Carrboro Police lacked probable
         cause for the first warrant taken out Sept. 1, 2004, Manning wrote. Because every other search was based on things
         recovered during the first search, it's all tainted by the fact that the first was illegal. "The search warrant was no more and
         no less than an open invitation for [Investigator Anthony Westbrook] and [Lt. John Lau] to engage in a general, exploratory
         rummage through [Dalzell's] remaining belongings in the apartment," Manning wrote. Dalzell was long considered the
         prime suspect in Key's 1997 disappearance, but the case quickly went cold. So when Carrboro police arrested Dalzell and
         said he had confessed, they received both kudos and questions from family, friends, lawyers and other law enforcement
         officers. Then, after details emerged about how the department got Dalzell to say he killed Key after they left a Carrboro
         bar eight years ago, Superior Court Judge Wade Barber ruled the confession couldn't be used as evidence. Along with the
         fake arrest warrant, officers also faked a letter saying prosecutors would seek the death penalty unless Dalzell confessed
         and led police to Key's body. Carrboro Police Chief Carolyn Hutchison said that officers followed proper procedure in
         getting the search warrant and that everyone acted in good faith. ― This case presented complex legal issues all along the
         way," she said. Hutchison said the department has conducted internal reviews and officers have talked with the Carrboro
         town attorney, the District Attorney's Office and others to learn from the case. (Jessica Rocha, Raleigh News & Observer,
Criminal Procedure Protections

• 4th- Protection against unreasonable
  searches & seizures
  – Kyllo v. United States, p.105
  – The Supreme Court finds that police scanning of a home
    with a thermal imager without a warrant is an
    impermissible search because it violates the right to be
    left alone from governmental monitoring of our actions in
    our homes.
  – ―In the sanctity of the home all details are intimate details‖
  – Note: This was a 5-4 decision.
Criminal Procedure Protections

• 4th- Protection against unreasonable searches &
   – Searches of Business: generally business inspectors
     must have a warrant. (Marshall v. Barlow, 1978)
Criminal Procedure Protections
• 4th- Protection against unreasonable searches &
   – The Constitution protects against unreasonable search and seizure. A
     seizure occurs when a vehicle is stopped at a checkpoint. The
     magnitude of the drunken driving problem is beyond dispute, and the
     state has an interest in eradicating it. The measure of the intrusion on
     the motorist stopped briefly at sobriety checkpoints is slight.
     Additionally, the degree of ―subjective intrusion,‖ the fear and surprise
     engendered in law-abiding motorists by the nature of the stop, is
     minimal. They can see that other vehicles are stopped, as well as
     visible signs of the officers‘ authority. Finally, the checkpoints are
     sufficiently effective to be sustainable. Approximately 1 percent of all
     motorists stopped are arrested. In striking the balance between the
     state‘s need and the individual‘s rights, the checkpoints are
     constitutional. Michigan Department of State Police v. Sits, 496 U.S.
     444 (1990).
Criminal Procedure Protections

• 4th- Protection against unreasonable searches & seizures
   – Question 7 at end of chapter
       • No. People have a reasonable and legitimate expectation of privacy in
         their homes as well as in the curtilage area immediately surrounding their
         homes. The Fourth Amendment is intended to protect this area from
         governmental interference or surveillance. The businessperson, like the
         occupant of a residence, has a constitutional right to be free from
         unreasonable governmental entry on his or her private commercial
         property. The government, however, has greater latitude to conduct
         warrantless inspections of commercial property because the expectation
         of privacy there differs significantly from that in one‘s dwelling. Dow could
         expect its privacy to be protected within its covered buildings. The open
         areas of the 2,000-acre plant complex, however, are not analogous to a
         home‘s curtilage. Thus, taking aerial photographs of an industrial plant
         complex from navigable airspace with a conventional commercial camera
         is not a search prohibited by the Fourth Amendment. Dow Chemical Co.
         v. United States, 476 U.S. 227 (1986).
Criminal Procedure Protections

• 4th- Protection against unreasonable searches & seizures
   – Question 8 at end of chapter
       • No. Where, as here, police officers have probable cause to search a
         car, the officers may inspect passenger‘s belongings that are inside
         the car if those belongings are capable of concealing the object of
         the search. Passengers possess a reduced expectation of privacy
         with regard to property they transport in cars. The degree of
         intrusiveness upon personal dignity is minimal when a package is
         being examined. Moreover, the government‘s interest in effective
         law enforcement would be appreciably impaired if officers did not
         have the ability to search a passenger‘s belongings because the
         ready mobility of a car creates the risk that evidence or contraband
         would be permanently lost while a warrant was being sought.
         Wyoming v. Houghton, 526 U.S 295 (U.S. Sup. Ct. 199).
Criminal Procedure Protections
•   4th- Requirement of Probable
    Cause to search or arrest
•   5th- Privilege against self-
•   5th- Miranda
     – Right to remain silent
     – Anything said can/will be used
       against you
     – Right to consult with a lawyer,
       to have lawyer present during
     – Cannot afford lawyer, a lawyer
       will be appointed (free of
          5th Amendment
• Double Jeopardy
   Double jeopardy
   (also called ―autrefois
   acquit‖ is a
   procedural defense
   that forbids a
   defendant from being
   tried a second time
   for the same crime.
5th Amendment - Grand Jury
•   23 Citizens Of Jurisdiction
•   Determine Probable Cause
•   Presumption Of Innocence
•   No Defense Counsel
•   Subpoena Power
•   Secret Proceedings
           5th Amendment
• Self-Incrimination
  – Protects Accused From Testifying Against
  – Does Not Protect Against Being Required
    To Produce Evidence
  – Business Records Can Be Obtained
  – Only Protects Sole Proprietorship Entity
• Double Jeopardy
  5th Amendment – Double Jeopardy
                          HUDSON v. UNITED STATES
                             118 S.Ct. 488 (1997)

FACTS: Petitioners were assessed civil penalties and were later indicted on
  charges arising out of the same transaction. Petitioners moved to
  dismiss the indictment on Double Jeopardy grounds.

ISSUE: Is the Double Jeopardy Clause of the Fifth Amendment a bar to
   criminal prosecution?


  1. The Double Jeopardy Clause protects only against the imposition of
  multiple criminal punishments.
  2. Whether a particular punishment is criminal or civil is, at least initially,
  a matter of statutory construction. If the statutory scheme is so punitive
  to transform the civil remedy into a criminal penalty, the Double
  Jeopardy Clause may be violated.
  3. Neither the monetary penalties nor the debarment sanctions are so
  punitive in form and effect to render them criminal.
Criminal Procedure Protections

• 5th- Miranda
   – Right to remain silent
   – Anything said can/will be used against you
   – Right to consult with a lawyer, to have
     lawyer present during interrogation
   – Cannot afford lawyer, a lawyer will be
     appointed (free of charge)
         6th Amendment
Provides Protections To:
  – Speedy/Public Trial
  – Trial By Jury
  – Be Informed Of Charge
  – Confront Accuser
  – Subpoena Witnesses
  – Assistance Of Attorney
Criminal Procedure Protections

  • 8th- Protection against cruel and unusual

  • Is capital punishment, or any particular
    method of capital punishment, cruel &
Criminal Procedure Protections

• Equal Protection Clause prohibits arbitrary
• Legislatures can‘t outlaw constitutionally
  protected behavior
  – e.g. Free Speech, though some types of speech
    can be considered criminal, e.g. the
    communication of a threat.
Criminal Procedure Protections
• Equal Protection
  – ―Strict Scrutiny‖ Test.
     • Laws that affect the ―fundamental rights‖ of
       similarly situated individuals in a different
       manner are subject to the ―strict scrutiny‖ test.
     • Any ―suspect class‖ (race, national origin) must
       serve a ―compelling state interest‖ which
       includes remedying past discrimination.
Criminal Procedure Protections

• Equal Protection
  – Intermediate Scrutiny.
    • Applied to laws involving gender or legitimacy.
    • To be constitutional laws must be substantially
      related to important government objectives.
Criminal Procedure Protections
Equal Protection
  ―Rational Basis‖ Test.
    • Applied to matters of economic or social
    • Laws will be constitutional if there is a rational
      basis relating to legitimate government interest.
      (WHS Realty v. Morristown, 1999)
Criminal Procedure Protections

• Due Process
  – 5th and 14th amendments provide ―no
    person shall be deprived of life, liberty or
    property without due process of law.‖
  – Due Process includes both Procedural
    and Substantive issues.
Criminal Procedure Protections
• Procedural Due Process
  – Procedures depriving an individual of her
    rights must be fair and equitable.
  – Constitution requires adequate notice and
    a fair and impartial hearing before a
    disinterested magistrate.
Criminal Procedure Protections
• Substantive Due Process
  – Focuses on the content or substance of
  – e.g. Laws limiting fundamental rights
    (speech, privacy, religion) must have a
    ―compelling state interest.‖
  – e.g. Laws limiting non-fundamental rights
    require only a ―rational basis‖.
Criminal Procedure Protections

• Due Process requires that criminal statutes be
  clearly worded (so that they put an ordinary
  person on notice).
  – Question 4. Chicago v. Morales,
  – The Court finds that an anti-loitering statute passed by
    Chicago to help control street-gang activity and thereby
    decrease the murder rate, is unconstitutionally vague and
    gives the police officer too much discretion. The Court
    suggests how it might be made constitutional with some
  – Note: In Chicago v. Youkhana The Court found that the
    freedom to loiter for innocent purposes is part of the
    constitutionally protected liberty interest.
Criminal Procedure Protections

• Due Process requires that criminal statutes be
  clearly worded (so that they put an ordinary person
  on notice).
   – Chaffee v. Roger, p.102
      • Like the U.S. Supreme Court‘s decision in Chicago v.
        Morales , the U.S. District Court in Chaffe finds the Nevada
        intimidation statute unconstitutionally vague and gives police
        officers too much discretion. Additionally, the court finds the
        Nevada statute to be overbroad. The Court remanded the
        issue to the Nevada Supreme Court so that the court could
        narrow the meaning of ―threat‖ and ―intimidation.‖ In the
        overbreadth analysis of the law, the court finds that the
        statute stands to chill legitimate first amendment activities.
Criminal Procedure Protections

• Due Process requires that criminal statutes be
  clearly worded (so that they put an ordinary
  person on notice).
  – Houston v. Hill
     • The appellee, Hill, was arrested for shouting at officers who
       were talking with another individual. Hill‘s admitted intent
       was to divert the officers‘ attention from their duties. The
       statute under which Hill was arrested made it unlawful to ―in
       any manner… interrupt any policeman in the execution of his
       duty.‖ In holding the statute to be unconstitutionally
       overbroad, the Court explained that, ―the freedom of
       individuals verbally to oppose or challenge police action
       without thereby risking arrest is one of the principal
       characteristics by which we distinguish a free nation from a
       police state.‖ 482 U.S. 451, 462-463 (1987).
Criminal Procedure Protections

• Another loitering statute, overly broad?
  – Some loitering statutes have been upheld, but Alexandria‘s
    statute cannot be because it is overbroad. It criminalizes a
    substantial amount of constitutionally protected activities by
    equating unlawful purpose with innocent activities that may be
    done by a person lacking unlawful intent. A person could be
    prosecuted for speaking in public for 15 minutes, shaking
    hands, and exchanging business cards. Individuals could be
    convicted for distributing campaign literature, asking persons to
    sign petitions, and soliciting community support. The inherent
    danger of the statute is that people may abstain from
    socializing, counseling, organizing community events, or
    registering to vote out of fear of prosecution Northern Virginia
    Chapter, American Civil Liberties Union v. Alexandria Va., 747
    F. Supp. 324 (D. E. Va. 1990).
            Business Crimes
• White-collar = non-violent, often business/financial
  (e.g. embezzlement, fraud, etc.)
   – Sabine v. Texas, p.52
      • The court finds that OSHA does not preempt the state‘s use of
        criminal law to prosecute Sabine and its president for criminally
        negligent homicide.
   – United States v. Dean, p.52-53
      • The court found that the state did not need to prove the
        company manager knew about the statutory permit requirement
        in order to convict him of ordering employees to dispose of
        hazardous chemicals without the permit. He just had to know
        he was ―treating‖ hazardous waste.
      • Is it fair to infer knowledge of regulations to business people in
        the business that is being regulated? Should it depend on an
        individual‘s position in the company?
           Business Crimes
• White-collar Crime
  – United States v. Hong, p. 107
    • Hong is found liable under the ―responsible corporate officer‖
      doctrine even though he is not a corporate officer. Hong stands
      for the idea that personal liability promotes responsible
      conduct. It sets a precedent for charging criminal negligence
      when a company official or shareholder had no actual
      knowledge of, or control over, the activities in question. The
      decision also demonstrates the government‘s ability to
      successfully prosecute a corporate defendant or responsible
      official for criminal negligence arising out of fiscal decisions that
      may not have appeared significant or controversial at the time
      they were made. While Hong is arguably an unsympathetic
      defendant, it is not difficult to imagine a corporation or a
      corporate official facing charges under the Clean Water Act for
      an innocent, yet mistaken, decision involving the purchase,
      repair, or replacement of pollution control equipment. Hong,
      like Nanowski, which appears later in the chapter, is steeped in
      the idea of ―public welfare.‖ In ―public welfare‖ cases, society is
      willing to tolerate individual unfairness in order to deter socially
      dangerous conduct.
        Business Crimes

• White-collar Crime
  – Public policy justifies the imposition of
    liability on otherwise innocent persons who
    stand ―in responsible relation to a public
    danger‖ when an act does not require
    intent. A failure to act is sufficient to
    impose liability if the defendant had the
    power to prevent the violation. United
    States v. Park, 421 U.S. 659 (1975).
           Business Crimes
• White-collar Crime
  – State of Connecticut v. Nanowski, p. 108
     • The state does not have to prove Nanowski intended not to
       pay his employees in order to successfully prosecute him.
       Many regulatory offenses dispense with the requirement of
       proof of criminal intent. Such regulations usually impose
       strict liability on corporate officers. Strict liability does not
       require proof that the defendant intended to exact harm,
       but simply that s/he committed some wrong. Critics of
       strict liability crimes argue that the mens rea requirement is
       fundamental to criminal law and is consistent with the
       retributive principle that one who does not choose to cause
       social harm, and who is not otherwise morally to blame for
       its commission, ought not to be punished. Nanowski
       illustrates the diminished, or non-existent, role of the mens
       rea requirement in public welfare offenses. It grows out of
       the U.S. Supreme Court decision in United States v. Park.
       421 U.S. 658 (1975).
            Business Crimes
• White-collar Crime
  – The RCRA criminal provision states in part, ―any person who
    knowingly ... disposes of any hazardous waste ... without first
    having obtained a permit‖ is subject to prosecution. At a
    minimum, the word knowingly means a person knew the
    waste was hazardous. Disposal without a permit must also
    be knowing. Under certain regulatory statutes requiring
    knowing conduct, however, the government need only prove
    knowledge of the actions taken and not that defendants knew
    they were violating a statute. The principle that ignorance of
    the law is no defense applies. Where dangerous or
    deleterious waste materials are involved, the probability of
    regulation is so great that anyone who is aware that he is in
    possession of them or dealing with them must be presumed
    to be aware of the regulation. Knowledge can be inferred on
    the part of those whose business it is to know; it may be
    inferred as to those who hold the requisite responsible
    positions with the corporation. U. S. it Johnson & Towers,
    Inc., 741 F.2d 662 (3 Cir. 1984).
Business Crimes
• White Collar Crime
  – Recent trend to get tough (e.g.
  – Often difficult to prove individual liability
    for corporate crimes
  – State/Federal Sentencing Guidelines -
    primary objective: consistency
Some Specific Business Crimes
• Worker Endangerment-
  Occupational Safety & Health
• Obstruction Of Justice
• False Statement
   – Bank
   – Federal Agency (This is what got
     Martha Stewart!)

Some Crimes Affecting Business
• Robbery- aggravated
• Burglary- aggravated
• Larceny
   – Grand
   – Petit/Petty
• False Pretenses
• Receiving Stolen Goods
• Arson
• Forgery
Some Crimes Affecting Business
• Theft (also known as stealing) is in
  general, the wrongful taking of someone
  else's property without that person's willful
  consent, with the intent to permanently
  deprive them of its possession or use. In
  law, ―theft‖ is usually the broadest term for a
  crime involving the taking of property.
  Legally, in most jurisdictions, theft is
  generally considered to be synonymous with
Some Crimes Affecting Business
The crime of larceny was first identified some
600 years ago and was initially narrowly
interpreted. However, it was also typically
punishable by death! Under common law, larceny
is the trespassory taking and asportation of the
tangible personal property of another with the
intent to deprive him or her of it permanently.
Trespass limits the crime to acts which involve a
violation of the right of possession--that is, lawful
possession prior to the act negates trespass.
Note that “taking” requires control, if only for a
brief period of time.
Some Crimes Affecting Business
In regard to larceny, intent requires that one intended to
deprive the possessor "permanently" of the property.
Although the mens rea of larceny is the intent to steal, the
focus is on the loss to the possessor, not the gain to the
defendant. Thus, even if the thief did not gain in the
taking, if the possessor lost in the process. Courts have
also held that permanence can be more than keeping
forever. Permanence can include the intent to deprive the
possessor of economic significance, even if he plans on
returning it later. It can also include taking and exposing
the property to a risk of permanent loss, like driving a
vehicle at very high speed.
Some Crimes Affecting Business
Larceny by Trick or Deception
occurs when the victim of larceny
is tricked by a misrepresentation of
fact into giving up possession of
property. This should not be
confused with false pretenses,
where the victim is tricked into
giving up title to the property.
Some Crimes Affecting Business
Grand larceny is typically defined as larceny
of a significant amount of property. In the
U.S., it is often defined as an amount valued
at $200 or more (though in some jurisdictions
the amount is as low as $100, and in others,
such as South Carolina, as high as $2000).
Grand larceny is often classified as a felony
with the concomitant possibility of a harsher
sentence. A theft involving a lesser amount is
generally classified as petty larceny, which
is usually a misdemeanor.
Some Crimes Affecting Business
Robbery is the crime of seizing property
through violence or intimidation. A
perpetrator of a robbery is a robber.
Because violence is an ingredient of most
robberies, they sometimes result in the harm
or murder of their victims. The precise
definition of robbery varies between
jurisdictions. The main elements of robbery
are a trespassory taking and asportation of
personal property from another‘s person or
presence using either force or threat with the
intent to steal the property.
Inchoate Offenses
An inchoate act/offense is a crime relating to the act
of preparing for or seeking to commit another crime. A
true inchoate offense occurs only when the intended
crime is not perpetrated. Absent a specific law, an
inchoate offense requires that the defendant have the
specific intent to commit the underlying crime. For
example, for a defendant to be guilty of the inchoate
crime of solicitation of murder, she must specifically
intend to cause the death of a particular human being.
It would not be enough for defendant to ask another to
kill the victim when she simply intended to scare the
victim. (Note that specific intent can be inferred, and
many people would infer the specific intent to kill the
victim simply by defendant asking another to do it).
  Inchoate Offenses
Examples of inchoate offenses include:

          Aiding or abetting
In 360 B.C. Plato is attributed with stating that one who
―has a purpose and intention to slay another and only
wounds him should be regarded as a murderer.‖
However, about 1300, English Nobleman Henry of
Bracton stated that ―For what harm did the attempt
cause, since the injury took no effect.‖ (As they say in
common American parlance, ―No harm, no foul.‖)
Attempt was not a crime at early British common law.
However, by the 1400‘s English judges began applying
the maxim ―The will shall be taken for the deed‖ and
English criminal records show parties began be
criminally charged for attempt in England in the late
1500‘s. In the 1600‘s, Frances Bacon argued that ―all
acts of preparation should be punished.‖ By the 1700‘s,
English courts recognized a formal law of attempt. In
Rex v. Scofield (1784), a servant was charged for
attempting but failing to burn down his master‘s house.
The purpose of laws punishing attempts to commit a
crime is to discourage people from planning and
attempting to commit ―dangerous conduct.‖
The essence of the crime of attempt is that the
defendant has tried but failed to commit the actus reus
("guilty act") of the full offense, but has the direct and
specific intent to commit that full offense. The normal
rule for establishing criminal liability is to prove an actus
reus accompanied by the appropriate mens rea at the
relevant time.
Early common law required some actual injury. Most
modern criminal statutes do not.
Whether the actus reus of an attempt has occurred is a question of
fact for the jury to decide. A charge of attempt requires more than
mere intent (see People v. Murray). Note that the common law used
to distinguish between acts that were ―merely preparatory‖ and
those which were ―sufficiently proximate‖. When anyone is
planning and executing a plan, there will always be a series of
steps that have to be taken to arrive at the intended conclusion.
Some aspects of the execution will be too remote from the full
offense, e.g. watching the intended victim over a period of time to
establish the routines, traveling to a store to buy necessary tools
and equipment, etc. But the closer to the reality of committing the
offense the potential wrongdoer moves, the greater the social
danger he or she becomes. Since the potential wrongdoer could
change his or her mind at any point before the crime is committed,
the state should wait until the last possible minute to ensure that the
intention is going to be realized.
In English law, the test of proximity was that the
defendant must have "...crossed the rubicon, burnt his
boats, or reached a point of no return". (D.P.P. v.
Stonehouse [1977] 2 All ER 909 per Lord Diplock.)
Another test is whether the defendant has ―reached that
part of the series of acts, which if not interrupted or
frustrated or abandoned, would inevitably result in the
commission of the intended offence‖ (Stephen's Digest
of the Criminal Law).

Former U.S. Supreme Court Justice Oliver Wendell
Holmes said ―acts should be judged by their tendency‖,
but that there ―must be a dangerous proximity to
The ―res ipsa loquitor test”, also called the ―unequivocality test‖) looks to
see if, at a certain point in time, the defendant had ―no other purpose than the
commission of a specific crime.‖

The ―probable desistance test” focuses on whether the defendant would
have followed through with the crime had the opportunity existed.

The Model Penal Code (MPC) uses a “substantial step test”, looking at
whether the defendant has taken a substantial step or steps towards the
commission of the crime.

The “indispensable act test” asks whether the defendant had gotten control
of everything they needed to commit the crime. In most jurisdictions,
possession of the materials to commit the crime is not sufficient evidence of

Most jurisdictions have specific attempt statutes related to specific crimes,
such as attempted murder, or attempted robbery.
Defenses to a charge of attempt may include,
voluntary abandonment, legal impossibility or
actual impossibility. Legal impossibility involves the
situation where the defendant believes their intended
act was illegal but it in fact was not. (Reminds me of
the Sponge Bob Square Pants episode when Sponge
Bob and Patrick ―steal‖ a balloon on free balloon day!
Hey, give me a break, I have young kids.)
Another example of this is a case from Wisconsin
where the defendant tried to receive a stolen Harley-
Davidson Motorcycle which it turned out was not
actually stolen (State v. Kordas, N.W.2d 483 (Wis.
Note that both American and English law, criminal
attempt usually applies even though the facts are such
that the commission of the offense is actually
impossible, so long as the defendant believes that he
is about to break the law and intends to commit the
relevant full offense. (State v. Haines)
As a legal term, a conspiracy is an
agreement of two or more people to
commit a crime. The agreement is the
actus reus and the intent to both agree
and act constitute the mens rea. In
some jurisdictions, the agreement
alone is sufficient to bring a charge of
conspiracy. Other jurisdictions require
―substantial steps‖ or ―overt acts‖.
In Hyde v. U.S., (1912), Justice Holmes
stated that ―if an overt act is required, it
does not matter how remote the act may be
from accomplishing the purpose, if done to
effect it.‖ As to the parties to a conspiracy,
most modern criminal statutes apply a
unilateral approach whereby all
conspirators need not necessarily be in
agreement with all others or even be aware
of the other conspirators, and failure to
convict one party to an alleged conspiracy
does not prevent others from being
In “wheel conspiracies‖, one of more
defendants participate in every
transaction, as the “hub” of the
In “chain conspiracies”, participants
at one end of the chain may no nothing
of conspirators at the other end of the
chain. Drug smuggling conspiracies
are often of this type.
Defenses: Mistake of law or fact
are often acceptable defenses to a
charge of conspiracy. Withdrawal
however is usually not a defense,
since the crime of conspiracy is
considered to be complete when
the parties first enter into an
                     20 F.3d 974 (9th Cir. 1994)

•   FACTS: Hughes Aircraft contractually agreed to supply the United States with microelectronic
    circuits to be used in weapons defense systems. The results of the testing of these circuits
    was falsified by Donald LaRue, a Hughes Aircraft employee. Other employees informed
    LaRue‘s supervisors of the false testing reports. No actions were taken against LaRue, and
    the United States was not informed of the fraudulent test results. Both Hughes Aircraft and
    LaRue were indicted and tried on charges of conspiracy to default. The trial jury found Hughes
    Aircraft guilty, but LaRue was acquitted. Hughes Aircraft appealed its conviction arguing that it
    cannot be guilty of conspiracy if the alleged co-conspirator was found not guilty.

•   ISSUE: Can Hughes Aircraft be found guilty of engaging in a conspiracy if its alleged co-
    conspirators are found not guilty?

•   DECISION: Yes.


•   1. The conviction of one co-conspirator is valid even when the alleged co-conspirators are
•   2. A corporation may be liable for conspiracies entered into by its employees.
•   3. Conspiracies exist when more than one corporate employee works to defraud the
•   4. Since LaRue‘s supervisors failed to act after receiving information about LaRue‘s
Solicitation consists of a person inciting, counseling,
advising, urging, or commanding another to commit a
crime with the specific intent that the person solicited
commit the crime. It is not necessary that the person
actually commit the crime, nor is it necessary that the
person solicited be willing or able to commit the crime
(such as if the "solicitee" were an undercover police

For example, if A commands B to assault C and A
intends for B to assault C, then A is guilty of solicitation.

Note that solicitation can apply to just about any criminal
act. Examples might be solicitation of murder,
solicitation of prostitution, or solicitation of a bribe.
  Aiding And Abetting
Abetting (from the Old French to bait or urge dogs
upon someone) involves instigating or assisting in
the commission of an offence. An abettor differs
from an accessory in that he must be present at the
commission of the crime; all abettors (with certain
exceptions) are principals, and, in the absence of
specific statutory provision to the contrary, are
punishable to the same extent as the actual
perpetrator of the offence. A person may in certain
cases be convicted as an abettor in the commission
of an offence in which he or she could not be a
principal, e.g. a woman or boy under fourteen years
of age in aiding rape. More recently, an abbetor is
generally known as an accomplice.
Anyone who aids, counsels, encourages or assists in the
preparation for a crime, but who is not actually present in
the commission of the crime, may be an “accessory
before the fact”. At common law an accessory before the
fact could not be convicted unless and until a principal
was convicted. However, many modern-day criminal law
statutes have removed this requirement. An accessory
before the fact is often punished at the same level as a

Any person who gives aid, comfort or shelter to a criminal
with the purpose of assisting same in avoiding arrest
after a the crime has been committed, but who was not
present during the crime, may be an “accessory after the
fact”. Accessories after the fact are usually punished at a
lesser level than principals.
• Elements:
  –   Intention To Mislead
  –   Misstatement Of Fact
  –   Justifiable Reliance
  –   Injury
• Types
  – Securities Fraud
  – Health Care Fraud
  – Mail & Wire Fraud
     Mail And Wire Fraud
• Interstate Communication
• Scheme To Defraud- Course Of Action To
  Deceive Others
• Legal Aspects- Statement (Material Fact)
  Known To Be Untrue Or Disregards Truth
   – Intent To Defraud- Act Knowingly
   – Good Faith
Mail And Wire Fraud         SCHMUCK v. UNITED STATES
                               109 S.Ct. 1443 (1989)

FACTS: Wayne Schmuck bought and sold used cars. Schmuck‘s fraudulent scheme
involved rolling back the odometer on used cars and selling them for inflated prices due to
low mileage. Schmuck was charged with mail fraud since the car title certificate was
mailed to the Wisconsin Department of Transportation. These mailings and the issuance
of new title certification were the necessary steps in completing the sales transaction.
Schmuck argued he cannot be convicted of mail fraud since he did not mail any
documents. The trial court resulted in a conviction. The appellate court affirmed the
conviction. Schmuck filed for and was granted certiorari.

ISSUE: Can Schmuck be guilty of mail fraud when he did not mail anything related to the


1. Schmuck‘s rolling back the odometer constitutes fraud.
2. The mailing (by the buyer) of the title certificate forms is an essential element to the
completion of the fraudulent transaction.
3. Although Schmuck did not mail anything, his conviction of the mail fraud charge is
upheld since the mailing clearly was necessary to complete the fraudulent transaction
Bankruptcy Crimes
• Falsify Information

• False Claim

• Concealment of Assets
    Racketeer Influenced &
Corrupt Organizations Act(1970)
• Liability
   – Use/Invest Income From Prohibited Activities
   – To Acquire/Maintain Interest In Prohibited
   – Conducts/Participates/Conspires In Prohibited
• Prohibited Activity
   – Pattern Of Racketeering
   – Collection Of Unlawful Debt
• Allows for Seizure of Assets
• Allows for Treble Damages
        Racketeer Influenced &
Corrupt Organizations Act(1970) (RICO)
                               109 S.Ct. 2893 (1989)

FACTS: A class action suit, with H.J. Inc. as the plaintiff, sought an injunction and triple
damages in a RICO suit against Northwestern Bell. The basis for the RICO claims arises from
employees of Northwestern Bell bribing members of the Minnesota Public Utilities
Commission related to the rates that Northwestern Bell charges. The trial court dismissed this
suit since it concluded there was no pattern of wrongdoing. The appellate court affirmed. H.J.
Inc. received certiorari from the Supreme Court.

ISSUE: Does RICO require distinct actions of illegality to find a pattern of racketeering?



1. A pattern is found in establishing a relationship among the illegal acts (predicates) and the
threat of continuing illegal activity.
2. The evidence presented in this case shows numerous bribes being paid over a 6-year
3. These multiple examples of predicates and the likelihood the bribes would continue satisfy
the requirements of a RICO claim.
          Racketeer Influenced &
  Corrupt Organizations Act(1970) (RICO

• Cedric Kushner Promotions, Ltd. v. Don King, p.110
   – The Supreme Court held that fight promoter Don King, a natural
     person, is a legally different entity from Don King Productions,
     and therefore could be sued under RICO even though King was
     the only shareholder and president of Don King Productions.
   – Note that this is a civil RICO suit.
   – Kushner argued that King‘s illegal activities resulted in the
     cancellation of Kushner‘s scheduled fights. King also argued that
     he could not be sued under the statute because he was an
     employee acting within the scope of his employment. While the
     Second Circuit accepted this argument, the Supreme Court
     rejected it because it would immunize from RICO liability many of
     those at whom the statute directly aims—high ranking individuals
     in an illegitimate criminal enterprise who, seeking to further the
     purpose of that enterprise, act within the scope of their authority.
          Racketeer Influenced &
  Corrupt Organizations Act(1970) (RICO

• The Supreme Court has long expressed a wish for Congress
  to rein in RICO, some recent cases show a willingness to
  begin to do what Congress has refused to do. The Justice
  Department has voluntarily reigned in its use of RICO in
  certain instances by limiting the seizure of assets of RICO
  defendants and limiting its use in cases where the defendant
  is charged with filing false tax returns. Note that over half the
  states have adopted ‗baby RICO‘ statutes, so companies
  could face liability in multiple jurisdictions.
• The ability to recover treble damages has led to the use of
  RICO in a wide variety of suits from employment cases, to
  abortion picketing, to securities sales. Jim and Tammy
  Bakker were sued under civil RICO.
Cyber Crime
• Hacker (Cracker)- Unlawful Access To
  Electronic Information
• Electronic Theft
  – Trade Secrets
  – Personnel Records
  – Customer Lists
Example of Proving Elements of a
Crime: Common Law Burglary

•   (a).   breaking (a forcible entry concept)
•   (b).   and entering
•   (c).   the dwelling of another
•   (d).   with intent to commit a felony therein
•   (e).   by the defendant

• (Note: in some jurisdictions must also be at
Example of Proving Elements of a
Crime: Common Law Burglary
  – Is the defendant guilty of burglary if:
     • (a). He opened the victim‘s door, entered his house
       and took a stereo he‘d seen through the window?
     • (b). Same facts as above, but defendant walked
       through an open door?
     • (c). Same facts as (a), but defendant entered by
       pushing already open door three inches further open?
     • (d). If the defendant broke down the victim‘s door,
       and entered her home with the intent of raping her?
     • (e). If the defendant had a trained monkey open the
       victim‘s window, enter and steal the stereo?
Example of Proving Elements of a
Crime: Common Law Burglary

    • (a).Yes. All the required elements are present.
    • (b).No, no ―breaking‖ present; defendant is liable for
      larceny (theft), though.
    • (c).Yes, any use of force, however slight, is enough
      for breaking.
    • (d).Yes. Rape is a felony and all elements of burglary
      are present.
    • (e). Yes. The monkey is an ―agent of the defendant‘s
      will‖ and all the elements are present. (Note: In many
      cases a child used by an adult to commit a crime
      may also be considered this.)
Should ―Victimless Crimes‖ Be

• e.g. Prostitution, Marijuana, Sodomy,
  – Difficult to enforce
  – Facilitate corruption
  – Overburden the courts and police
  – Foster disrespect for the law

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