Criminal Law

1. Criminal Law

2. Criminal Law Substantive criminal law defines what types of conduct are criminal and prescribes the penalties to be imposed for engagement in that conduct. Procedural criminal law involves the rules designed to implement the substantive law. It is concerned with the criminal process, the legal steps through which an accused offender passes.

3. Western Criminal Law • Sumerian Codes (3500 BC) • Codes of Hammurabi (2000 BC) • Egyptian laws • Hebrew Law • Greco/Roman Law (Justinian I – 534 AD • Medieval Era • Magna Carta (1215 AD)

4. American Substantive Law • U.S. Constitution • State Constitutions • Federal, State, County, City Laws/Codes • Federal, State, County, City Regulatory Agency Rules and Regulations • Executive Orders • Federal and State Court Decisions

5. Crime A crime is an act or an omission prohibited by law, the violation of which is prosecuted by the state in a judicial proceeding in its own name. It is a public wrong as distinguished from a private wrong.

6. Standards of Proof 5% 20% 33% 51% 67% 90% Shred Reasonable Probable Preponderance Clear & Beyond Suspicion Cause Convincing Reasonable Doubt

7. Corpus Delicti • Actus Reus • Commission – movement, verbal, possession 2. Omission – failure to act when had a legal duty to do so (Writ of demurrer) • Mens rea (intent) • Reasonable Man Test

8. Mens Rea Lowest Highest General Recklessness General Specific Premeditation Negligence Intent Malice

9. Mens Rea • Insanity – lacks the capacity to appreciate the wrongfulness of their conduct. • Under the influence of alcohol – voluntariness is the key

10. Reasonable Man Test • An individual is not liable in a criminal court for remote, unforseeable, or indirect consequences which a reasonable person would not have foreseen as likely to have flowed from the act. There is a liability for the direct results of the act, but a diminished/no criminal liability for remote, unforseeable, or indirect consequences.

11. Civil vs Criminal Criminal LawCivil Law Public offense Private wrong Punishment Monetary damages State brings the action Individual brings the action Limited state appeals Both parties can appeal Fine goes to the state Individual compensation Beyond Reasonable Doubt Preponderance Reasonable Man Test No Reasonable Man Test Higher levels of intent Lower levels of intent Unanimous jury Non-unanimous jury

12. Homicide The killing of a human being, caused by the act of another. Justifiable A - Court order: 1 - execution 2 - hospital/comatose situation B - Necessary to suppress a legally defined riot setting. C - Necessary when law enforcement agents are dealing with a violent and/or immanentely dangerous felon. D - Necessary when in defense of self or others who face a real and immanent threat of death or serious injury. E - Necessary when protecting your personal property (Make My Day Laws)

13. Homicide The killing of a human being, caused by the act of another. Excusable A - By an individual incapable of crime B - Result of an accident or mistake as a result of ordinary negligence

14. Criminal Homicide Homicide that was neither justifiable nor excusable. - First degree murder (premeditation) - Second degree murder (malice) - Voluntary manslaughter (general intent) - Involuntary manslaughter (recklessness) - Statutory manslaughter (general negligence)

15. Felony Murder Rule Any death which occurs during the commission of a felony can be considered murder (usually 1st degree murder), and all participants in that felony or attempted felony can be so charged as long as there is a causal connection between the felony and the killing (proximate cause). This rule broadens the crime of murder in two ways: • Even if there was no intent to kill, if a death occurs during the commission or attempted commission of a felony, murder can be charged as long as there is a causal connection between the felony and the killing (proximate cause). • All participants in the felony can be held equally culpable, including those who did no harm, possessed no weapon, and did not intend to hurt anyone.

16. Accessory to Murder • Accessory to Murder (before the fact) – Same charge as if they committed the murder: (1) One who willfully aids, facilitates, assists, abets, counsels, commands, inducesor procures the commission of a murder (2) One who willfully causes a murder to be done by another • Accessory to Murder (after the fact) – Lessor charge, but still a serious felony (1) Willfully hinders the apprehension, investigation or prosecution of an alleged murderer (2) Willful aid provided to an individual being investigated for/accused of a murder, such as: (a) harboring the individual (hiding them from legal authorities) (b) providing ways and means of escape/to evade arrest (c) tampering with evidence (d) warning the individual of an impending arrest (e) using force or deception to prevent the arrest A

17. Assault Any un-consented touching of another, no matter how slight the injury. • Knowledge of the victim is essential • Words are sufficient – the accused’s conduct must have created an apprehension of immediate un-consented touching

18. Assault Categories • Simple assault • Aggravated assault • Verbal assault • Assault with a dangerous weapon • Assault with a deadly weapon • Assault on a law enforcement officer • Stalking • Domestic assault • Sexual assault

19. Sexual Assault Sexual assault (traditional definition) – the unlawful carnal knowledge of a woman by force without consent.

20. Unlawful Carnal Knowledge • No spousal exemption. • Spousal exemption only if living apart under or pursuant to a court order of divorce. • Blanket spousal exemption.

21. Carnal Knowledge • The slightest sexual penetration of intimate parts is sufficient to constitute a crime. • Most states have scaled out sexual assault along a gradient from, for example, level 7 (un-consented kissing) up to step 1 (un-consented and forced sexual intercourse).

22. Of a Woman • No longer. Men may now be raped (gender neutral). • Done generally in response to homosexual scenarios.

23. By Force and Without Consent • What is force? Must the victim physically resist? • What is consent? Can there be any level of victim precipitation? If there is, is there a mitigating level of criminal liability on the part of the assailant?

24. Sexual Assault • Few cases are reported to the police. Officially there are roughly 125,000 cases reported each year, but the actual number is likely closer to 3 million, maybe 4 million. The fact that so few are reported, this silent tolerance of rape in America, is a disgusting cultural defect. • Perhaps as many as 20% of the rape convictions involve some alleged level of victim precipitation. • Around 5% of cases reported to the police are total fabrications.

25. Sexual Assault • An unknown number of cases involve a rape that has actually occurred, and a subsequent purposeful false identification of an offender by the victim. • Non-chastity is not a defense, ie., a known prostitute can be raped. • Evidence as to the victim’s prior sexual habits/activity can generally be presented in court to challenge their reliability and creditability as a witness, and to embarrass and confuse the witness while testifying. These attacks are referred to as badgering.

26. Sexual Assault • Rape Shield laws in place to limit the badgering • Courtroom paradox • Post sexual assault, assaults • Hollywood vs. reality • Nancy Raines, After Silence: Rape and My Journey Back. • Rape/Spouse Abuse Crisis Center; 472-0203

27. Sexual Assault: Other Categories • Statutory Rape • Incest • Child Sexual Abuse • Traditional Male Sex Crimes • Obscenity • Prostitution

28. Human Trafficking • United Nations Trafficking Protocol (117 countries signed on to date) • 45.8 million currently in some form of forced labor/slavery in 167 countries • As many as 2.5 million new people are trafficked every year • 8 million are in a forced sex trade • Of that 8 million, 1.8 million are children • 70 million displaced persons in the world, so a ready supply of candidates/victims to be trafficked • $150 Billion enterprise, worldwide

29. Human Trafficking: Information and Resources Global Slavery Index United Nations International Labor Organization State Department Trafficking in Persons (TIP) report Human Trafficking Hotline Human Trafficking Resource Center U.S. Office to Monitor and Combat Trafficking in Persons NGO’s involved in this fight: Global Centurian Foundation (formerly Tiny Stars)Nebraska Students Against Modern Slavery Omaha Women’s FundPolarisRemember NhuSomaly Mam Foundation

30. Sex Offender Sanctions • Megan’s Law • SORIS (Sex Offender Registry and ID System) • Sex Offender Habitation Laws • Protect Act • Extra-territoriality • Princeton Principle of Universal Jurisdiction

31. Statute of Limitations The maximum time within which the state must initiate legal proceedings • Length of time varies tremendously from state to state • Misdemeanors – usually between 1 and 3 years • Murder – no statute of limitations • Other felonies – usually around 3, 5, 7 years • Sexual assault – a number of states moving to remove the statute of limitations or significantly lengthen the timeframe, especially for child sexual assault cases

32. Robbery Robbery – the taking and carrying away of the property of another, by force or the threat thereof; involves a fear factor • Simple “robbery” • Armed robbery (aggravated robbery) • Robbery with a dangerous weapon • Robbery with a deadly weapon • Bank robbery (typically a federal offense)

33. Crimes Against Property • Burglary – the breaking and entering into the dwelling of another with the intent to commit a felony

34. Crimes Against Property • Larceny/Theft – the taking and carrying away of the property of another by one who has no right to possession and/or ownership (intent is permanent deprivation of ownership); it is a trespass against the possession of another. • Grand theft • Petty theft • Auto theft • Shoplifting/employee theft • Embezzlement (taking by one already in lawful possession; it is a trespass against the ownership, rather than the possession of, another)

35. Crimes Against Property:White Collar Crimes • Planned bankruptcy • Savings and Loan scams • Check kiting • Stock and bond fraud • Land fraud • Oil fraud • Tax fraud • Health care fraud • Price fixing and bid rigging • Sandbagging • Money laundering • Illegal campaign contributions • Computer fraud/Cybercrime • Identity theft

36. Crimes Against Property:White Collar Crimes • Corporate Crime • Bid rigging/price fixing • Sale of defective merchandise • Dumping of defective merchandise • Illegal disposal (dumping) of toxic products • Hazardous working conditions • Filing false financial reports • Governmental Misconduct (white collar and beyond) • Watergate • Iran/Contra • Guantanamo/Abu Ghraib • Genocides

37. Crimes Against Property • Arson • Forgery • Counterfeit products • DVDs • Clothes and apparel • Jewelry • Cosmetics • Pharmaceutical drugs • Money • Art crime • Receiving stolen property

38. Bribery • Bribery (offering or accepting a bribe) • the offer of anything of value to any person holding public office with the intent of influencing the official performance of their duty • the receipt of anything of value by a public official with the intent of being influenced in the official performance of their duty (what is lobbying?)

39. Crimes Involving Weapon Possession • Carrying a concealed weapon • Minors in possession of weapons • Possessing a weapon without adhering to: • Waiting periods • Restrictions • Registration requirements • Permit and license requirements • Possessing banned weapons

40. Other Crimes • Traffic violations • Theft of services • Kidnapping/False imprisonment

41. Drug Crimes It is a crime to knowingly and intentionally Possess, manufacture and/or distribute controlled substances with authorization. The big four at present are: - marijuana - cocaine/crack - methamphetamines - heroin

42. Other Drugs of Concern - Opiods(OxyContin, Percocet, Percodan, Vicodin) - LSD - Salvia/Sally D - Ecstasy - Ritalin - Rohypnol (roofies) - GHB - Khat - PCP

43. Drugs and Crime • Commit crimes while on drugs (not heroin, but PDP and Ecstasy) • Commit crimes to earn the money to buy drugs (some 80% of urban property crime is drug related) • Conflict between buyer and seller at the street level over product quantity and quality • Street dealers fight to control their urban territory • Gangs and cartels compete to control the drug trade and markets in their city, their country (Bloods v. Crips; Mexican cartels)

44. Biggest Problem Drugs • Tobacco (480,000 deaths/year in US; 6 million deaths/year worldwide) • Purchase underage • Provide to a minor • Smoke in prohibited public places • Tax evasion • Alcohol (90,000 deaths/year in US; 2.5 million deaths/year worldwide) • Purchase underage • Possess underage • Provide to a minor/contributing to the delinquency of a minor • Public intoxication • Urinating in public • Tax evasion • DWI (10,500+ deaths and 290,000+ injuries/year in US)

45. Gold Collar Crime If you wish to break the law with impunity, become the law (Hitler, Stalin, Mao, Marcos, etc). Those who make the laws are far more dangerous to us than those we lock away. The great criminals we know of are the major corporations and their governmental partners who, in collusion, pass laws to make their illicit behaviors legal. We receive law enforcement attention in inverse proportion to our power and influence. “All governments that have flourished since the beginning of time have been nothing more than a conspiracy of the rich to perpetuate themselves under the guise of statecraft.” Thomas More “Anything that is economically right, is morally right.” Henry Ford Role model theory and the market economy (C. Wright Mills)

46. Role Model Theory and the Market Economy • Money is the measure of self-worth. • Money gives the power to change reality. • Money brings a measure of immunity from wrongdoing. • Unto those who acquire, less is required. • Definitions of crime (which are controlled by the elite), provide an ideology to justify their retention of power/the status quo. • The focus on street crime deflects attention away from the more serious crimes. • Our behaviors tend to reflect those in the higher social strata.