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Suggested Additional Assignments
Research: Corporate Crime
Students should find a newspaper or magazine article involving crime committed by a business or
corporate executive. What are the economic costs of the (alleged) crime? What penalties can the state
impose for the crimes? Are they penalties too harsh or too weak when compared to penalties for street
crime? How should the law deal with the defendants’ conduct?
Research: Computer Crime
Students should find a newspaper or magazine article involving a computer crime, such as online fraud,
online identity theft, or use of sites such as Craigslist and MySpace to perpetrate crimes. What new issues
and/or obstacles are raised when crime is committed online? What new problems might the computer
raise for law enforcement?
Research: Revolving Door?
Students should research recidivism rates for U.S. prisons. What percentage of prisoners return to prison
for committing new crimes? Do recidivism rates differ by the type of crime a person committed? By age
of the prisoner when committed to prison? By race? By education? By sex? By the type of penal
environment in which the prisoner served time?
Field Work: Criminal Court
Students should visit a criminal session of a local trial court and observe court proceedings for a
minimum of two hours. (It is likely easier for students in an urban environment to complete this
assignment, but students near county seats should also have access to criminal court sessions.) Students
should attempt to find a criminal trial, sentencing, or pre-trial motions. They should sit, observe, and
compare what they see with the images they’ve formed of criminal court from the media.
Chapter Overview
Chapter Theme
Criminal behavior extends far beyond the street crime that is fodder for television dramas—white collar
crime has a greater economic impact than street crime. Criminal law differs in important ways from civil
law, the subject of most of the text: the state prosecutes the wrongdoer, the wrongdoer can face lengthy
imprisonment or death, and rights embedded in the Constitution protect individuals accused by the state
of criminal behavior.
Quotes of the Day
“He threatens many that hath injured one.” –Ben Jonson (1573 1637), English dramatist, Silius, in Fall of
Sejanus, act II. “Most of the evils of life arise from man’s being unable to sit still in a room.” –Blaise
Pascal (1623 1662), French scientist and religious essayist.
Approaching Criminal Law
Criminal law is a popular topic. Students have been exposed to it, primarily through media, for most of
their lives. Their knowledge and interest tend to focus on street crime. The text introduces a balanced
view, spending a number of pages on crimes that harm business and crimes committed by businesses.
A Civil Case versus a Criminal Case
Civil law involves the rights and liabilities that exist between private parties. If one person claims that
another has caused her a civil injury, she must file a lawsuit and convince a court of her damages.
Conduct falls under criminal law when society outlaws it. When a state legislature or Congress concludes
that certain behavior threatens the population generally, it passes a statute forbidding that behavior.
Prosecution
Only the government can prosecute a crime and punish the perpetrator by sending him to prison. The
government may also impose a fine, but it keeps the fine and does not share it with the victim.
Burden of Proof
In a civil case, the plaintiff must prove her case only by a preponderance of the evidence. But because the
penalties for conviction in a criminal case are so serious, the government must prove its case beyond a
reasonable doubt.
Right to a Jury
A judge or jury decides the facts of a case. A criminal defendant has a right to a trial by jury for any
charge that could result in a sentence of six months or longer. The defendant may demand a jury trial or
may waive that right, in which case the judge will be the fact finder.
Felony/Misdemeanor
A felony is a serious crime, for which a defendant can be sentenced to one year or more in prison. Murder,
robbery, rape, drug dealing, money laundering, wire fraud, and embezzlement are felonies. A
misdemeanor is a less serious crime, often punishable by a year or less in a county jail. Public
drunkenness, driving without a license, and simple possession of one marijuana cigarette are considered
misdemeanors in most states.
Other than prison time, a court can also impose a fine that the government keeps and does not share with
the victim. It can order restitution, meaning that the defendant reimburses the victim for harm suffered.
The government can also limit the rights of convicted criminals in a surprisingly broad manner.
Criminal Procedure
Conduct Outlawed – crimes are created by statute (federal and state).
Case: Skilling v. United States1
Facts: Jeffrey Skilling was president and chief operating officer of Enron Corporation, the seventh largest
company in America in terms of revenue. At least, that is what everyone thought. Ten months into
Skilling’s term of office, Enron filed for bankruptcy protection. Its stock, which had been trading at $90
per share, became virtually worthless. A government investigation discovered that company executives
had conducted an elaborate conspiracy to prop up Enron’s stock price by overstating the company’s
finances.
Skilling was charged with a theft of honest services. Traditionally, this federal statute had been used to
prosecute public officials who took bribes or kickbacks. But then prosecutors began to charge employees
under this statute for having generally breached their duty to their employer—and that is what they
decided to do with Skilling. They alleged that his financial shenanigans constituted a theft of honest
services. He was convicted, sentenced to more than 24 years in prison, and ordered to pay $45 million in
restitution. Skilling appealed, arguing that the honest services statute was unconstitutionally vague. The
Fifth Circuit disagreed and affirmed his conviction. The Supreme Court granted certiorari.
Issue: Was the honest services statute unconstitutionally vague?
Excerpts from Justice Ginsburg’s Decision:
To satisfy due process, a penal statute must define the criminal offense [1] with sufficient definiteness that
ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage
arbitrary and discriminatory enforcement. According to Skilling, [the honest services statute] meets
neither of the two due process essentials. First, the phrase “the right of honest services,” he contends, does
not adequately define what behavior it bars. Second, he alleges, [the honest services statute’s]
1 561 U.S., 130 S. Ct. 2896 United States Supreme Court, 2010
standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections,
thereby facilitating opportunistic and arbitrary prosecutions.
In the main, prosecutions under this statute involved fraudulent schemes to deprive another of honest
services through bribes or kickbacks. Confined to these paramount applications, [the honest services
statute] presents no vagueness problem. The Government urges us to go further by locating within [this
statute’s] compass another category of proscribed conduct: “undisclosed self-dealing by a public official
or private employee”—i.e., the taking of official action by the employee that furthers his own undisclosed
financial interests while purporting to act in the interests of those to whom he owes a fiduciary duty.
Reading the statute to proscribe a wider range of offensive conduct, we acknowledge, would raise the due
process concerns underlying the vagueness doctrine. To preserve the statute without transgressing
constitutional limitations, we now hold that [the honest services statute] criminalizes only the
bribe-and-kickback core.
The Government did not, at any time, allege that Skilling solicited or accepted side payments from a third
party in exchange for making these misrepresentations. It is, therefore, clear that Skilling did not
commit honest-services fraud.2
Question: What was Skilling’s argument?
Question: What is the Court’s response?
Answer: The Court agreed that in its current state, §1346 was unconstitutionally vague; however,
rather than invalidating the statute altogether, the Court limited the statute’s permissible reach. The
State of Mind – Voluntary Act – Duress – A defendant is not guilty of a crime if she committed it under
duress. However, the defendant bears the burden of proving by a preponderance of the evidence that she
acted under duress.
Entrapment – When the government induces the defendant to break the law, the prosecution must prove
beyond a reasonable doubt that the defendant was predisposed to commit the crime.
Conspiracy – If the police discover a plot to commit a crime, they can arrest the defendants before any
harm has been done. A defendant can be convicted of taking part in a conspiracy if:
a conspiracy existed,
the defendants knew about it, and
some members of the conspiracy voluntarily took a step toward implementing it.
Gathering Evidence: The Fourth Amendment
The Fourth Amendment to the Constitution prohibits the government from making illegal searches and
seizures of individuals, corporations, partnerships, and other organizations. The goal of the Fourth
Amendment is to protect the individual from the powerful state.
Warrant
As a general rule, the police must obtain a warrant before conducting a search. The warrant must specify
with reasonable certainty the place to be searched and the items to be seized.
2Skilling had originally been convicted of three crimes: honest services fraud, wire fraud, and securities fraud.
When the Supreme Court cleared him of charges under the honest services statute, it remanded the case to the
appeals court to determine if the other two convictions were independent enough to stand on their own. If not, he
would have had to be retried. Ultimately, Skilling reached a settlement with the government under which he
forfeited $42 million to pay back Enron victims and was resentenced to 14 years in prison (a reduction from the
original 24). He could be released as early as 2017.
Probable Cause
The magistrate will issue a warrant only if there is probable cause. Probable cause means that, based on
all of the information presented, it is likely that evidence of a crime will be found in the place to be
searched.
If the police search without a warrant, they have, in most cases, violated the Fourth Amendment. But
even a search conducted with a warrant violates the Fourth Amendment if:
• there was no probable cause to issue the warrant;
• the warrant does not specify with reasonable precision the place to be searched and the things
sought; or
• the search extends beyond what is specified in the warrant.
Searches without a Warrant
There are seven circumstances under which police may search without a warrant:
• Plain View.
• Stop and Frisk.
• Emergencies.
• Automobiles.
• Lawful Arrest.
• Consent.
• No Expectation of Privacy.
Technology and social media have created new challenges for the courts in determining what is a
reasonable expectation of privacy. For example:
DNA Tests.
Heat Seeking Devices.
Digital Cameras.
Cellphones.
Computers.
Email.
Websites.
Chats.
Social Media.
GPS Tracking.
Case: United States v. Jones3
Facts: The Washington, D.C. police suspected Antoine Jones of being a drug dealer. Without a valid
search warrant, they attached a GPS tracking device to his car. For 28 days, they used the GPS to
determine his whereabouts. Based on this evidence, Jones was convicted of a conspiracy to deal cocaine
and was sentenced to life in prison. The appellate court reversed his conviction on the grounds that the
police should have obtained a warrant before attaching the GPS. The Supreme Court granted certiorari.
Issue: Was the warrantless use of a GPS an illegal search under the Fourth Amendment?
Excerpts from Justice Scalia’s Decision:
The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It
is beyond dispute that a vehicle is an “effect” as that term is used in the Amendment.
3 132 S. Ct. 945 United States Supreme Court, 2012
The Government physically occupied private property for the purpose of obtaining information. We have
no doubt that such a physical intrusion would have been considered a “search” within the meaning of the
Fourth Amendment when it was adopted. [F]or most of our history the Fourth Amendment was
understood to embody a particular concern for government trespass upon the areas (“persons, houses,
papers, and effects”) it enumerates.
The judgment of the Court of Appeals for the D.C. Circuit is affirmed.
Question: What language does a car fall under within the text of the Fourth Amendment?
Answer: An “effect.”
Question: For what purpose did the Government physically occupy private property in this case?
Answer: The purpose of obtaining information.
The Fourth Amendment – Exclusionary Rule
Under the exclusionary rule, evidence obtained illegally (or any information obtained as a result of this
illegal behavior) may not be used at trial.
Many people have a fundamental conceptual problem with understanding the exclusionary rule: it only
applies to incriminating evidence. They would, presumably, support a (non-sensical) rule that excluded
non-incriminating evidence seized during an illegal search, but they believe that if incriminating evidence
is found, how can a search be illegal? It would, of course, serve no constitutional purpose to exclude
from trial evidence that has no bearing on a defendant’s guilt. The issue is to help those who stumble
over this fact understand why courts created the exclusionary rule. One can start by not calling an illegal
search a “technical violation” or “technical mistake.” We do not consider government’s seizure of a
private residence without compensation to be a technical violation of the due process clause, or banning
of peaceful political speech to be a technical violation of the First Amendment.
Question: How can it possibly make sense to exclude legitimate evidence because a police officer made a
mistake in getting a warrant? Aren’t we letting the criminal go free because the constable blundered?
Answer: The Supreme Court has created the exclusionary rule as a judicial remedy to protect all citizens
Question: Does the Supreme Court think that all police want to abuse the average citizen?
Answer: No. What the court has said, by crafting the rule, is that one of the most valuable things there is
Question: I haven’t done anything wrong and am not worried about the police “smashing in my doors in
the middle of the night.” Why should I care about the exclusionary rule?
Answer: There’s a saying—”A liberal is a conservative who has just been arrested; a conservative is a
liberal who has just been mugged”—that, while obviously painting with overbroad strokes, contains an
Question: The difference between a lawful search or arrest and an unlawful one is often a warrant. What
is so special about a warrant?
Answer. The warrant requirement means that the police must obtain the permission of a neutral person
before conducting most searches or making most arrests. Because the police are charged with
Question: What might happen if there was no requirement for probable cause?
Answer: For example, police might reason that a certain percentage of students at a large university use
Question: What is wrong with being searched if you don’t have anything to hide?
Answer: Being searched is—by definition—invasive. Some people might not mind it, but there are
many who do not want to feel that they live in a police state. Also, to allow police to search without a
Question: How many people go free because of the exclusionary rule?
Answer: Very few. As the text reports, most studies have shown that less than 1 percent of those
There are three exceptions to the exclusionary rule:
Inevitable Discovery.
Independent Source.
Good Faith Exception.
Fifth Amendment – Due Process
The Fifth Amendment requires due process in all criminal procedures and prohibits double jeopardy and
self-incrimination.
Self-Incrimination
The Fifth Amendment bars the government from forcing any person to testify against himself. In other
words, the police may not use mental or physical coercion to force a confession or any other information
out of someone.
Miranda Rights
The police cannot legally force a suspect to provide evidence against himself. But sometimes, under
forceful interrogation, he might forget his constitutional rights. In the following landmark case, the
Supreme Court established the requirement that police remind suspects of their rights – the very same
ones that we have all heard so many times on television shows.
Landmark: Miranda v. Arizona4
Facts: Ernesto Miranda was a mentally ill, indigent citizen of Mexico. The Phoenix police arrested
him at his home and brought him to a police station, where a rape victim identified him as her
assailant. Two police officers took him to an interrogation room but did not tell him that he had a right
to have a lawyer present during the questioning. Two hours later, the officers emerged with a written
confession signed by Miranda. At the top of the statement was a typed paragraph stating that the
confession was made voluntarily “with full knowledge of my legal rights, understanding any
statement I make may be used against me.”
At Miranda’s trial, the judge admitted this written confession into evidence over the objection of
defense counsel. The officers testified that Miranda had also made an oral confession during the
4 384 U.S. 436; 1966 U.S. LEXIS 2817 SUPREME COURT OF THE UNITED STATES, 1966
interrogation. The jury found Miranda guilty of kidnapping and rape. He was sentenced to 20 to 30
years’ imprisonment. On appeal, the Supreme Court of Arizona affirmed the conviction. In reaching
its decision, the court relied heavily on the fact that Miranda did not specifically request a lawyer. The
Supreme Court of the United States granted certiorari.
Issues: Was Miranda’s confession admissible at trial? Should his conviction be upheld?
Excerpts from Justice Warren’s Decision: Our holding briefly stated it is this: the prosecution may
not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege
against self-incrimination. By custodial interrogation, we mean questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived of his freedom
of action in any significant way. As for the procedural safeguards to be employed, the following
measures are required. Prior to any questioning, the person must be warned that he has a right to
remain silent, that any statement he does make may be used as evidence against him, and that he has a
right to the presence of an attorney, either retained or appointed.
The defendant may waive these rights, provided the waiver is made voluntarily, knowingly and
intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to
consult with an attorney before speaking there can be no questioning. Likewise, if the individual is
alone and indicates in any manner that he does not wish to be interrogated, the police may not
question him. The mere fact that he may have answered some questions or volunteered some
statements on his own does not deprive him of the right to refrain from answering any further
inquiries until he has consulted with an attorney and thereafter consents to be questioned.
In a series of cases decided by this Court, the police resorted to physical brutality—beating, hanging,
whipping—and to sustained and protracted questioning incommunicado in order to extort
confessions. Only recently in Kings County, New York, the police brutally beat, kicked and placed
lighted cigarette butts on the back of a potential witness under interrogation for the purpose of
securing a statement incriminating a third party.
Unless a proper limitation upon custodial interrogation is achieved there can be no assurance that
practices of this nature will be eradicated in the foreseeable future. Not only does the use of the third
degree involve a flagrant violation of law by the officers of the law, but it involves also the dangers of
false confessions, and it tends to make police and prosecutors less zealous in the search for objective
evidence. As [an official] remarked: ‘If you use your fists, you are not so likely to use your wits.’
[C]oercion can be mental as well as physical, and the blood of the accused is not the only hallmark of
an unconstitutional inquisition. In a serious case, the interrogation may continue for days, with the
required intervals for food and sleep, but with no respite from the atmosphere of domination. It is
possible in this way to induce the subject to talk without resorting to duress or coercion.
Even without employing brutality, the very fact of custodial interrogation exacts a heavy toll on
individual liberty and trades on the weakness of individuals. In [this case before the Court], the
defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation
procedures. It is obvious that such an interrogation environment is created for no purpose other than
to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of
intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human
dignity. The current practice of incommunicado interrogation is at odds with one of our Nation’s
most cherished principles—that the individual may not be compelled to incriminate himself.
All these policies point to one overriding thought: the constitutional foundation underlying the
privilege is the respect a government—state or federal—must accord to the dignity and integrity of its
citizens. To maintain a fair state-individual balance, to respect the inviolability of the human
personality, our accusatory system of criminal justice demands that the government seeking to punish
an individual produce the evidence against him by its own independent labors, rather than by the
cruel, simple expedient of compelling it from his own mouth.
Miranda was not in any way apprised of his right to consult with an attorney and to have one present
during the interrogation, nor was his right not to be compelled to incriminate himself effectively
protected in any other manner. Without these warnings the statements were inadmissible. The mere
fact that he signed a statement which contained a typed-in clause stating that he had “full knowledge”
of his “legal rights” does not approach the knowing and intelligent waiver required to relinquish
constitutional rights.
Right to a Lawyer
As Miranda made clear, a criminal defendant has the right to a lawyer before being interrogated by the
police. The Sixth Amendment guarantees the right to a lawyer at all important stages of the criminal
process. Because of this right, the government must appoint a lawyer to represent, free of charge, any
defendant who cannot afford one.
After Arrest – Indictment
The grand jury—a group of ordinary citizens—determines whether there is probable cause that this
defendant committed the crime with which she is charged. If the grand jury determines that there is
probably cause, an indictment issues. An indictment is the government’s formal charge that the defendant
has committed a crime and must stand trial. Because the grand jury never hears the defendant’s evidence,
it is relatively easy for prosecutors to obtain an indictment.
Arraignment
At an arraignment a clerk reads the formal charges of the indictment. The defendant must enter a plea to
the charges. At this stage, most defendants plead not guilty.
Plea Bargaining
A plea bargain is an agreement between prosecution and defense that the defendant will plead guilty to a
reduced charge, and the prosecution will recommend to the judge a relatively lenient sentence. In the
federal court system, about 97% of all prosecutions end in a plea bargain. Such a high percentage has led
to some concern that innocent people may be pleading guilty to avoid the risk of tough mandatory
sentences. A judge need not accept the bargain, but usually does.
Discovery
If the defendant does not plead guilty, the prosecution is obligated to hand over any evidence favorable to
the defense that the defense attorney requests. The defense has a more limited obligation to inform the
prosecution.
Trial and Appeal
When there is no plea bargain, the case must go to trial. The mechanics of a criminal trial and appeal are
similar to those for a civil trial, described in Chapter 6, on dispute resolution.
Double Jeopardy
The prohibition against double jeopardy means that a defendant may be prosecuted only once for a
particular criminal offense. The purpose is to prevent the government from destroying the lives of
innocent citizens with repetitive prosecutions.
Question: What does double jeopardy mean?
Question: I recall reading about cases where people were prosecuted by a state and by the federal
government for the same offense. Why doesn’t that violate double jeopardy?
Answer: To qualify as double jeopardy a second prosecution must be done by the same sovereign
that prosecuted the first. There is no prohibition against a different sovereign prosecuting the same
defendant, based on the same incident. In the Rodney King trials in Los Angeles, the police officers
Question: Is that fair?
Question: O. J. Simpson was acquitted after the most highly publicized trial in history, yet he was
then sued by the families of the victims. Didn’t that violate double jeopardy?
Punishment
The Eighth Amendment prohibits cruel and unusual punishment. Courts are generally unsympathetic
to claims under this provision. For example, the Supreme Court has ruled that the death penalty is not
cruel and unusual as long as it is not imposed in an arbitrary or capricious manner.5
Another important case under the Eighth Amendment involved California’s “three strikes” law, which
dramatically increases sentences for repeat offenders. Gary Ewing, on parole from a nine-year prison
term, was prosecuted for stealing three golf clubs worth $399 each. Because he had prior convictions, his
crime, normally a misdemeanor, was treated as a felony. Ewing was convicted and sentenced to 25 years
to life. The Supreme Court ruled that this sentence was not cruel and unusual and that the three strikes law
was a rational response to a legitimate concern about crime.6
The Eighth Amendment also outlaws excessive fines. Forfeiture is the most controversial topic under this
clause. Forfeiture is a civil law proceeding that is permitted by many different criminal statutes. Once a
court has convicted a defendant under certain criminal statutes—such as a controlled substance law—the
government may seek forfeiture of property associated with the criminal act.
5Gregg v. Georgia, 428 U.S. 153 (S. Ct. 1976).
6Ewing v. California, 538 U.S. 11 (S. Ct. 2003).
