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Chapter 05 – Criminal Law and Procedure

5-1

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CHAPTER 05

CRIMINAL LAW AND PROCEDURE

I. OBJECTIVES:

This chapter is designed to impress upon students the importance of being familiar with basic

criminal law principles and to expose students to the fundamental difficulties inherent in the

application of the criminal law in the corporate context. After reading the chapter and attending

class, a student should:

A. Understand the unique nature of the criminal law and the essential elements of criminal

liability in our legal system.

B. Understand the basic procedural and constitutional safeguards that protect the rights of persons

charged with criminal offenses.

C. Be familiar with the basic steps in a criminal prosecution.

D. Understand the problems inherent in using the criminal law to control corporate behavior.

In addition, note the Learning Objectives that appear near the beginning of the chapter.

II. ANSWERS TO INTRODUCTORY PROBLEM:

B. Although the Fourth Amendment establishes a general requirement of a warrant and

presumptively indicates that a warrantless search is unreasonable, the Supreme Court has

reasonable expectation of privacy with regard to it. The case is United States v. Caymen, 404

F.3d 1196 (9th Cir. 2005).

E. Whether utilitarians would see a problem would depend upon how the “greatest good for the

entitled.

III. SUGGESTIONS FOR LECTURE PREPARATION:

A. Introduction.

1. Stress the importance to persons in business of a basic understanding of criminal law

principles.

text.)

B. The Criminal Law.

1. Note that crimes are public wrongs—offenses against society. Hence, criminal prosecutions

are brought by an agent of the government (the prosecutor).

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a. Distinguish between crimes and torts (private wrongs). Only conviction of a crime

will expose a defendant to the uniquely coercive force of criminal sanctions.

2. Discuss the distinction between felonies and misdemeanors. Also mention infractions.

3. Note that the criminalization of behavior is a social question. The nature of the acts

classified as crimes changes in response to changes in our social values. You may wish to

discuss some of the arguments in favor of “decriminalizing” so-called “victimless” crimes

(e.g., certain drug offenses, prostitution, gambling, and consensual sexual offenses).

Critics argue that attempts to treat such offenses as crimes are ineffective, lead to

1) Deterrence. Distinguish between general and special (specific) deterrence. Note

that general deterrence may be achieved even if the wrong person is convicted (as

offender).

a) Discuss the factors that contribute to deterrence. Some observers argue that

the certainty of punishment is more important than the severity of

punishment.

deterred if they are sufficiently socialized.

2) Rehabilitation.

3) Incapacitation.

b. Retributionists see the punishment of morally culpable behavior as the only proper

morally neutral behavior.

1) Some commentators have argued that there are utilitarian reasons for not

criminalizing morally neutral behavior. They argue that criminalizing such

a. Note the ways (if any) in which your state takes an approach that is different from the

general state approach outlined on p. 135 of the text.

Court’s decision. Figure 1 also discusses later decisions in which the Supreme Court

examined follow-up questions not addressed in Booker. Briefly note those decisions.

6. Discuss the essentials of crime.

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a. Prior statutory prohibition. Stress the fact that criminal offenses are statutory offenses

(i.e., there are no longer any common law crimes). Courts also narrowly construe

criminal statutes. A text case, Sekhar v. United States, furnishes an example.

1) Sekhar v. United States (p. 137): The Supreme Court holds that the Hobbs Act’s

criminal provision dealing with extortion does not apply to a supposed attempt to

that statute.

Points for Discussion: Ask why, in a general sense, the Court ruled as it did.

usual meanings of the word “property” don’t include something such as the

recommendation allegedly being extorted here.) Note the related problem

crime of extortion.

2) Note that there are constitutional limits on the government’s power to criminalize

due process safeguard enjoyed by criminal defendants. Stress the policy reasons for

1) Contrast the “beyond a reasonable doubt” standard with the “preponderance of the

in these standards (particularly the former).

2) You may also want to digress a bit regarding the realities of the presumption of

innocence and the proof beyond a reasonable doubt standard. Many criminal

proof beyond a reasonable doubt standard, defense attorneys sometimes assert that

the standard is not nearly so difficult for government to meet in actual practice as

3) While digressing about realities associated with guilt, innocence, and standards of

proof, you might want to note that even by the admission of many defense

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system place the burden on the government to prove guilt as a factual and legal

matter by permissible and appropriate means. If the government fails to do so, the

“guilty” defendant is supposed to go free.

4) At this point, it may be helpful to list the elements of a basic criminal statute (e.g.,

burglary) and to take students through a number of hypotheticals aimed at

has not met its burden of proof.

c. The defendant’s criminal intent and capacity to form that intent. Discuss the mens rea

component of most serious criminal offenses (including, in general, the different

forms that the requisite criminal intent may take, depending on the offense in

basis of class discussion.

d. Arthur Andersen LLP v. United States: The Supreme Court overturns Arthur

Andersen’s conviction for a supposed violation of a crime involving document

Points for Discussion: Work through the Court’s comparison of the “knowingly .

. . corruptly” phrasing of the statute with the language of the trial judge’s jury

instructions. Note the discrepancy, which, as the Court noted, could have allowed the

e. Examine the basic policy reason for requiring the capacity to form a criminal intent as

an element of criminal liability. Discuss the three basic types of incapacity.

2) Infancy.

3) Insanity. Note that there are various legal tests for insanity. The traditional test in

the M’Naghten rule, under which a criminal defendant 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

the insanity defense more difficult to raise successfully by treating insanity as an

affirmative defense (states adopting this approach vary on the burden of proof

required of defendants), using the narrower M’Naghten standard, or allowing

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successfully. Furthermore, jury hostility and the reality that insanity is not

is raised only as a last resort.

f. Discuss the constitutional limits on the power of the states and the federal government

to criminalize behavior.

1) Ex post facto criminal statutes are expressly forbidden. Emphasize that this

prohibition applies not only to laws defining an act as criminal but also to laws

establishing the punishment for a criminal act.

2) Constitutionally protected behavior cannot be criminalized. Mention the role

protection.

3) Constitutionally protected expression cannot be criminalized. This is established

a) Note that government-imposed content restrictions (as opposed to time, place,

and manner restrictions) are the concern here.

of this manual.)

c) Note the cases discussed at p. 139. Stevens illustrates the operation of the

students, we provide the following discussion suggestions regarding certain ones

of those cases.

Texas v. Johnson, 491 U.S. 397 (1989): On First Amendment grounds, the

Supreme Court affirms a lower court’s reversal of a protester’s conviction for flag

burning.

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political expression is sometimes referred to as being of “core” First Amendment

significance.

feelings it inspires. Nobody can suppose that this one gesture of an unknown man

will change our National’s attitude towards its flag.” In a seemingly reluctant

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concurrence, Justice Kennedy observed that it “is poignant but fundamental that

the flag protects those who hold it in contempt.” You may also wish to note that

Johnson produced a somewhat surprising alignment of Justices, with “liberal”

Justice Brennan and “conservative” Justice Scalia helping to comprise the

majority.

The dissenters in Johnson (Rehnquist, O’Connor, Stevens, and White) saw the

defendant’s flag-burning as, to use Chief Justice Rehnquist’s words, “the

equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to

the city streets, conducted a rally in front of City Hall, engaged in a “die-in”

white and blue, we spit on you, you stand for plunder, you will go under”).

erosion of liberty?

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992): The Supreme Court holds that the

First Amendment is violated by an ordinance that bans cross-burning and other

displays of symbols on property when the cross-burner (or symbol-displayer)

has never been very clear. In R.A.V., the Court accepted the lower court’s limiting

construction of the St. Paul ordinance at issue. Under this limiting construction,

the ordinance was deemed to be limited to reaching expressive conduct that

effectively amounted to fighting words. The lower court had concluded that the

other fighting words (or equivalent expressive conduct) uncriminalized. In other

words, the majority concluded that the category of fighting words, though often

said to be unprotected by the First Amendment, is not wholly outside the First

Amendment, because the government cannot selectively impose adverse

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intentionally causing harm to property? Does a separate hate crimes law add

anything to the law enforcement arsenal? If so, what?

Wisconsin v. Mitchell, 508 U.S. 476 (1993): The Supreme Court holds that the

victim‘s race.

The trial court, concluding that Mitchell selected his victim because of the victim’s

race, imposed an enhanced penalty on Mitchell pursuant to the Wisconsin statute.

argument and upheld the enhanced penalty.

How is Mitchell different from R.A.V.? Were the laws in each case designed to

expressive component of the defendants’ action in R.A.V. more substantial than

are entitled to no constitutional protection ‘” (quoting Roberts v. U.S. Jaycees, 468

U.S. 609 (1984)). The Court also stated that it is sometimes proper for sentencing

judges to take into account certain relevant biases and beliefs of the defendant.

Among those times is when it is reasonable (as it was in this case) for the

unrest and/or provoke retaliatory crimes than a beating that was not bias-

motivated.

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Perhaps a useful way of explaining Mitchell is to emphasize the Court’s

overwhelmingly unacceptable conduct and only incidentally (if at all) expressive.

5) Some speech falls outside the protective scope of the First Amendment. The most

notable category of speech excluded from the First Amendment is obscene

expression. (See the discussion at pp. 139-40 of the text.) When the expression at

issue—e.g., a book, magazine, or movie—is held by a court to be obscene under the

referred to in the second element must be highly explicit and graphic, not merely a

show that a defendant’s expression was obscene.

measures adopted by the government must be narrowly tailored to the

furtherance of the protection-of–minors purpose. Measures that sweep too

broadly will be held to violate the First Amendment. Such was the fate of

the Communications Decency Act (CDA), as noted in the discussion at p.

Amendment fate as the CDA.

b) Even if it would not otherwise be classified as obscene, sexually explicit

of-minors interests support this treatment of child pornography.

6) Due process requires that criminal statutes clearly define the behavior

prohibited so that an ordinary person would understand what behavior is

#9.

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a) Skilling v. United States (p. 141): The U.S. Supreme Court interprets the

“honest services” fraud statute in order to avoid a vagueness problem and

concludes that under the adopted interpretation, Skilling could not be

regarded as having conspired to commit honest services fraud.

and was therefore unconstitutional. So what does the Court do? (It looks at

whether it can adopt a narrowing construction that would avoid the vagueness

engaged in regardless of whether the other behaviors alleged in the criminal case

were wrongful.)

7) The Equal Protection Clause of the Fourteenth Amendment proscribes criminal

the equal protection guarantee insofar as the federal government action is

equal protection guarantee.

8) The proof-beyond-a-reasonable-doubt standard and the criminal intent

requirement were discussed earlier.

9) The Eighth Amendment prohibits the imposition of “cruel and unusual

punishments” for otherwise properly defined criminal offenses.

Court that arguable disproportionality translates into cruel and unusual

punishment.

to disproportionality arguments under the excessive fines clause than under

the cruel and unusual punishments clause. The term “excessive,” after all,

seems to contemplate inquiries regarding proportionality.

C. Criminal Procedure.