criminal law for university notes slides

notes

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

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 1. Commission – movement, verbal, possession 2. Omission – failure to act when have 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. * Rarely successful (less than 1% of the time) * Even if successful, courts will typically intervene and require counseling, medication, and possible confinement * Many have legitimate mental health challenges, but some abuse this “loophole” Under the influence of drugs or alcohol – voluntariness is the key

10. Reasonable Man Test An individual is not liable in a criminal court for remote, unforeseeable, 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, unforeseeable, or indirect consequences.

11. Reasonable Man Test, Civil Court There is no Reasonable Man Test in the civil courts. Individuals are liable in the civil tribunals for the consequences of their acts, whether they are remote and unforeseeable or not. Two over-riding principles or tests apply: 1. Proximate cause – is there a causal relationship between the action and the injury 2. Proportionality – how much of the injury was due to/can be attributed to the defendant’s actions

12. Civil vs Criminal Criminal Law Civil 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

13. 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 immanently 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 – not in every state)

14. 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

15. 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)

16. Felony Murder Rule Any death which occurs during the commission of a felony can be considered murder, and all participants in that felony can be so charged (typically 1 st degree murder) as long as there is a causal connection between the felony and the death (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 of a felony, murder can be charged as long as there is a causal connection. 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.

17. 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, induces or 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

18. Mass Murder Mass Murder – 4 or more people killed in one episode (same time and location), excluding the assailant, by any means (bomb, knife, gun, airplane, drugs, poison). We have around 20 mass murders a year. Mass shooting – 4 or more shot (not counting the shooter) in the same incident (same time and location), not necessarily killed though. We get about 1.5 mass shooting a day in the U.S. and this has been the case for many years. A

19. 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

20. 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 Assault of a child Domestic assault Sexual assault

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

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

23. 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/forced sexual intercourse).

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

25. 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?

26. Sexual Assault Police get roughly 130,000 – 140,000 reports of rape/year. Roughly 18 - 20% of the sexual assault cases reported to the police result in an arrest, and 80% of those individuals are convicted of something – so roughly a 15% conviction rate for rapes known to the police. Most rapes go un-reported. It is estimated that the actual number of rapes in the U.S. is around 3 to 4 million/year, so roughly 3-4% are reported to the police Victimization surveys pick up more of course, about a 10% reporting rate Females have a 20% chance of being raped in their lifetime in Botswana, and 85 – 90% of those will be perpetrated by someone they know.

27. Sexual Assault Non-chastity is not a defense, ie., a 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.

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

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

30. Human Trafficking United Nations Trafficking Protocol (117 countries signed on to date) 45-46 million people are 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

31. 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 Fund Polaris Remember Nhu Somaly Mam Foundation

32. 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

33. 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

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

35. Crimes Against Property Burglary – the breaking and entering into the dwelling of another with the intent to commit a felony Usually connotes a theft Day season v night season

36. 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)

37. Crimes Against Property: White-Collar Crimes White-Collar crimes cost 60 to 70 times as much as traditional street crime. ($1 Trillion v. $15 Billion – 2021 estimates) White Collar crimes are larcenies involving a violation of relationship of trust. The only common denominator in the various types or methods used by white collar criminals to steal is creativity. There are so many creative ways to steal. Some types of White-Collar crimes include: 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 Illegal campaign contributions Computer fraud/Cybercrime Identity theft Money Laundering

38. Crimes Against Property: White-Collar Crimes Corporate Crime Bid rigging/price fixing Sale of defective merchandise Dumping of defective merchandise Illegal disposal of toxic products (Dumping - Environmental crime) Hazardous working conditions Filing false financial reports Governmental Misconduct (White-Collar & Gold-Collar crimes) Watergate Iran/Contra October surprise Genocides/War Crimes/Crimes Against Peace Why do I need to break the law as there are so many legal ways to be dishonest. Al Capone

39. Crimes Against Property…continued Arson – willful and malicious burning of the dwelling of another Forgery – false making and/or material alteration with the intent to defraud Prescriptions (common in the inner-cities) IDs (common on college campuses) Checks (washing checks – not so common anymore) Credit, debit and ATM cards Stocks and bonds Money (more of an international issue) Counterfeit products (a subset of forgery) DVDs Clothes and apparel Jewelry Cosmetics Pharmaceutical drugs

40. Crimes Against Property…continued Art crime (counterfeit/forgery, theft, con games, extortion) Receiving stolen property – it is a crime to buy or receive stolen property, knowing the same to be stolen Charge typically one level less than if they had stolen the property Often turn states evidence and reveal/set up the fence in return for charges being reduced or dropped “Knowingly” is typically hard to demonstrate

41. 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?)

42. 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

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

44. 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

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

46. 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)

47. Biggest Problem Drugs Tobacco (480,000 deaths/year in US; 8 million deaths/year worldwide; $930 Billion/ year market worldwide) Purchase under age 21 Provide to an individual under age 21 (contributing to the delinquency of a minor) Smoke as an individual under age 21 Possess under age 21 Smoke in prohibited places Tax evasion (ATF) Alcohol (90,000 deaths/year in US; 2.5 million deaths/year worldwide; $1.5 Trillion market worldwide) Purchase under age 21 Provide to an individual under age 21 (contributing to the delinquency of a minor) Consume as an individual under age 21 Possess under age 21 (MIP) Consume in prohibited places Tax evasion (ATF) Public Intoxication Urinating in Public (PIP) High correlation with violent crime DWI (10,000+ deaths and 290,000+ injuries/year in US; $130+ Billion social cost)

48. Gold Collar Crime Gold Collar crime – acts which are immoral and unethical, but legal; legal thefts in accord with the “golden rule” concept (those who have the gold make the rules). Those with efficacy make the rules and decide how they will be enforced, and in so-doing make their thefts, their illicit behaviors legal. If you wish to break the law with impunity, become the law (Hitler, Stalin, Mao, Pol Pot, etc ). Crime in the streets v. Crime in the suites

49. Gold Collar Crime…continues Those who are behind the scenes and really make the laws are far, far, far more dangerous to us than those we lock away. The greatest criminals we know of are the major corporations and their government 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

50. Role Model Theory…C. Wright Mills Our behavior tends to reflect those in the higher social strata If management is not viewed as being honest, their employees are less likely to be honest If leaders are not viewed as being honest, the masses will behave likewise Contrast Botswana today and its market economy culture, with the Aztec orientation in this context