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Chapter 2 - Offenses Against Society: Criminal Law

Review, Reflect, Respond

The Bible contains many concepts that are at the foundation of modern criminal law. Here are but

several of many.

Leviticus 19:35-36 contains an example of the oldest type of business regulation and business

crime. What is it? ―35

Do not use dishonest standards when measuring length, weight or

quantity. 36

Use honest scales and honest weights, an honest ephah and an honest hin. I am the

LORD your God, who brought you out of Egypt.‖

Deuteronomy 19 contains an example of criminal liability that considers the intent of the

accused and also attempts to stop the blood feud. In English legal history, trial by battle or

duel (as discussed in Chapter Four) was the legal successor of the blood feud frequently used

to settle disputes by the Anglo-Saxons before the Norman conquest of England in 1066. What

example is given in the Deuteronomy 19 passage, and how is the blood feud prevented? ―4This

is the rule concerning the man who kills another and flees there to save his life—one who kills

his neighbor unintentionally, without malice aforethought. 5For instance, a man may go into

the forest with his neighbor to cut wood, and as he swings his ax to fell a tree, the head may

fly off and hit his neighbor and kill him. That man may flee to one of these cities and save his

life. 6Otherwise, the avenger of blood might pursue him in a rage, overtake him if the distance

is too great, and kill him even though he is not deserving of death, since he did it to his

neighbor without malice aforethought. 7This is why I command you to set aside for yourselves

three cities.‖

Note the problem of witnesses. What is required for a conviction in Deuteronomy 19? ―15

One

witness is not enough to convict a man accused of any crime or offense he may have

committed. A matter must be established by the testimony of two or three witnesses.‖

In modern cases, corroborating evidence may be scientific, such as DNA. There have been

some false convictions in recent years of individuals for drug offenses based upon the testimony of

paid undercover informants. These informants were paid significant amounts of money based upon

the number of arrests and convictions they produced. For some the temptation to commit perjury

was too great. The Texas legislature in 2001 enacted a statutory provision to reduce this possibility.

Tex. Code Crim. Proc. Art. 38.141:

Art. 38.141. Testimony of Undercover Peace Officer or Special Investigator

(a) A defendant may not be convicted of an offense under Chapter 481, Health and Safety Code

[a drug offense], on the testimony of a person who is not a licensed peace officer or a special

investigator but who is acting covertly on behalf of a law enforcement agency or under the color of

law enforcement unless the testimony is corroborated by other evidence tending to connect the

defendant with the offense committed.

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(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows

the commission of the offense.‖

(c) In this article, "peace officer" means a person listed in Article 2.12, and "special investigator"

means a person listed in Article 2.122‖

See, State v. Miller, 2010 Tenn. Crim. App. LEXIS 341, (Tenn. Court of Criminal Appeals –

Nashville, 2010): ―It is well settled that, "[i]n Tennessee, a conviction may not be based solely

upon the uncorroborated testimony of an accomplice." State v. Shaw, 37 S.W.3d 900, 903

(Tenn. 2001) (citing State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994)). This "very salutary rule"

is designed to prevent the "obvious dangers" of allowing a defendant to be convicted solely on the

basis of an accomplice's testimony. Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811, 814 (Tenn.

1959). However, Tennessee law requires only a modicum of evidence in order to sufficiently

corroborate the testimony of an accomplice. State v. Copeland, 677 S.W.2d 471, 475 (Tenn. Crim.

App. 1984).‖

What is ―eye for eye, tooth for tooth‖ a punishment for in Deuteronomy 19? ―16

If a malicious

witness takes the stand to accuse a man of a crime, 17

the two men involved in the dispute must

stand in the presence of the LORD before the priests and the judges who are in office at the

time. 18

The judges must make a thorough investigation, and if the witness proves to be a liar,

giving false testimony against his brother, 19

then do to him as he intended to do to his brother.

You must purge the evil from among you. 20

The rest of the people will hear of this and be afraid,

and never again will such an evil thing be done among you. 21

Show no pity: life for life, eye for

eye, tooth for tooth, hand for hand, foot for foot.‖

If you research the Old Testament, you will find that ―eye for eye, tooth for tooth‖ either

mandates proportionate punishment (having degrees of punishment was a radical idea in

ancient civilizations where every offense was harshly punished because kings were afraid of

losing power), or is the punishment for perjury. [Exodus 21:24 refers to proportionate

punishment; Leviticus 24:20 refers to proportionate punishment; and Deuteronomy 19:21 refers to

the punishment for perjury.] Thus, the phrase ―eye for eye, tooth for tooth‖ is widely misunderstood

and misapplied.

In Matthew 5:38-39 Jesus refers to ―eye for eye, tooth for tooth‖ in the context of not resisting an

evil person – in essence demonstrating such extreme love and concern for others that one is willing

to sacrifice both one’s person and possessions. This does not undercut the Old Testament usage of

―eye for eye, tooth for tooth‖, but takes the discussion to an entirely different level. Many have

used this passage as the basis for passive resistance such as that practiced by Gandhi and Martin

Luther King, Jr. This can be very powerful, and not weak or wimp-like at all. This passage has

created much commentary. ―38

You have heard that it was said, 'Eye for eye, and tooth for tooth.' 39

But I tell you, Do not resist an evil person. If someone strikes you on the right cheek, turn to him

the other also. 40

And if someone wants to sue you and take your tunic, let him have your cloak as

well. 41

If someone forces you to go one mile, go with him two miles. 42

Give to the one who asks

you, and do not turn away from the one who wants to borrow from you.‖

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Deuteronomy 21:18-21 is an example of how the survival of the group was more important than

individual rights or individual liberty. Is it possible for the actions of a few to ―infect‖ and destroy

society? We debate this issue today in the context of violent video games and movies, for example.

The passage appears harsh but addresses social problems that we still ponder today. Some

commentators see these verses in a positive light as they limit the arbitrary authority of a father. He

must consult with the elders. Others consider these verses as an early form of preventive action by

eliminating future criminals.

Deuteronomy 21:18-21: ―18

If a man has a stubborn and rebellious son who does not obey his father

and mother and will not listen to them when they discipline him, 19

his father and mother shall take

hold of him and bring him to the elders at the gate of his town. 20

They shall say to the elders, "This

son of ours is stubborn and rebellious. He will not obey us. He is a profligate and a drunkard." 21

Then all the men of his town shall stone him to death. You must purge the evil from among you.

All Israel will hear of it and be afraid.‖

An Introduction to Criminology:

Criminology studies crime (acts that violate basic social values and beliefs that are either

expressed in natural law [inherent knowledge of right and wrong] or statutes) as a social and

individual phenomena and draws upon sociology, psychology, and law. Current theories of the

causes of crime reflect whatever sociological or psychological theory is in vogue as this brief

overview will indicate. Cesare, Marquis of Beccaria (1738-1794) wrote ―On Crimes and

Punishments‖ (1764) as a foundational work of criminology. It condemned torture and the death

penalty. Interestingly, Beccaria argued against gun control laws stating: ―Laws that forbid the

carrying of arms . . . disarm only those who are neither inclined nor determined to commit crimes . .

. Such laws make things worse for the assaulted and better for the assailants; they serve rather to

encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence

than an armed man.‖ Beccaria was read by John Adams and Thomas Jefferson.

The Classical School of criminology, of which Beccaria was a founder, was based upon utilitarian

philosophy (Jeremy Bentham lived from 1748-1832). It believed in human free will and a

rational balancing by the individual of the costs and benefits of actions. Sufficiently swift and

severe punishment will deter criminal behavior. Prisons developed in this period as well as the U.S.

legal system.

The Positivist School of criminology states that criminal conduct is produced by internal and

external factors outside of the individual’s control. Here are some representative leaders. Cesare

Lombroso (1835-1909) made popular the idea that individuals are born criminal due to biological

determinism (Charles Darwin lived from 1809-1882). Certain physical traits were seen as

characteristic of criminals. Hans Eysenck (1916-1997) pointed to personality factors such as

extraversion and neuroticism. Adolphe Quetelet (1796-1874) used statistical analysis to relate

crime to social factors such as alcohol consumption, poverty, and education.

Jane Addams (1860-1935) started Hull House in Chicago in 1889, the first U.S. settlement house. It

provided a variety of community services and education in poor neighborhoods. The Chicago

School of criminology focused upon urban neighborhoods with high levels of poverty and

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social disorganization. Robert Park (1864-1944) and Ernest Burgess (1886-1966) were both

sociologists at the University of Chicago. Edwin Sutherland (1893-1950), with a 1913 Ph.D. from

the University of Chicago, suggested that individuals learned criminal behavior from older

experienced criminals that they associated with.

There are numerous theories of crime. Here are some major ideas. Social disorganization theory

states that neighborhoods with high population turnover and poverty fail to develop the informal

social structures that prevent or reduce crime. Social ecology theory sees abandoned buildings and

community deterioration as concentrating poverty and isolating the area from mainstream society

so that it becomes violence prone. Strain theory comes from the English translation of the writings

of Emile Durkheim (1858-1917). The idea is that crime is a normal response to the ―strain‖ (pain)

that individuals feel in attempting to meet their needs. This approach was advocated by Robert

Merton (1910-2003) in the 1930s who suggested that the U.S. is saturated with visions of

prosperity and freedom (the American Dream) and when individuals lack the opportunities to

achieve this dream (recall this is at the time of the Great Depression), then they turn to crime, or

retreat into deviant subcultures such as gangs, drug abusers, or homeless drunks.

Subculture theory focuses upon small groups that form their own values in opposition to

mainstream values. Trait theories focus upon genetic and/or environmental influences. Social bond

or Control theory focuses on why individuals do not become criminals related to attachments to

others and beliefs in moral values. Symbolic interactionism focuses on the meanings and labels that

elite media and cultural provide that individuals adapt as a self-fulfilling prophesy. Routine activity

theory focuses upon opportunities for crime that are present in daily life, and prevention by a

―capable guardian‖ such as a security guard. The ―place manager‖ should take nuisance abatement

measures such as preventing crowds of youth from collecting at a shopping mall.

New Right Realism emphasizes the control and prevention of criminal behavior with a focus on the

decline in family values and discipline. James Q. Wilson (1931 - -), Professor of Public Policy at

Pepperdine University, was President’s Reagan’s adviser on crime and is a leading advocate of this

position. Social structures are not emphasized, but rather the individual rational actor. In contrast,

Left Realism considers class structures and focuses on corporation crime and governmental crime,

such as unsafe working conditions. Feminist criminology critiques male dominated social control,

and the neglect of social concern for the victimization of women. Female crime is perceived as a

form of class conflict.

George Kelling and Catherine Coles in 1996 wrote ―Fixing Broken Windows: Restoring Order and

Reducing Crime in Our Communities‖, based upon a 1882 Atlantic Monthly article. The idea is

that attacking small problems, such as graffiti and public intoxication, will prevent major crime and

the flight of law abiding citizens from neighborhoods. The New York City Transit Authority and

Mayor Giuliani implemented these concepts in the 1980s and 1990s and crime fell, but the precise

reason for declining crime rates is open to debate.

An especially contentious debate concerns the impact of video game violence (and media violence

generally) on criminal behavior. Craig Anderson, Douglas Gentile, and Katherine Buckley

(psychologists at Iowa State University) in 2007 published the book ―Violent Video Game Effects

on Children and Adolescents.‖ They assert that exposure to violent video games and media

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violence is a significant risk factor for subsequent aggressive and violent behavior. In contrast,

Henry Jenkins III (media professor at MIT) argues against this connection asserting that mental

stability and the quality of home life are key risk factors for school shootings. This brief overview

can’t adequately address this debate and you are encouraged to study this issue in detail for

yourself.

Attempts in the U.S. to censor video games (interpreted by U.S. courts to be a form of speech) are

judicially reviewed under the strict scrutiny standard of the First Amendment (discussed in detail in

Chapter 19). For example, in Interactive Digital Software Association v. Saint Louis County, 329

F.3d 954 (Eighth Circuit, 2003) the court reviewed a city ordinance that ―makes it unlawful for any

person knowingly to sell, rent, or make available graphically violent video games to minors, or to

"permit the free play of" graphically violent video games by minors, without a parent or guardian's

consent.‖

The court wrote that ―A content-based restriction on speech is presumptively invalid, and the

County therefore bears the burden of demonstrating that the ordinance is necessary to serve a

compelling state interest and that it is narrowly tailored to achieve that end.‖

―The County's conclusion that there is a strong likelihood that minors who play violent video

games will suffer a deleterious effect on their psychological health is simply unsupported in the

record. It is true that a psychologist appearing on behalf of the County stated that a recent study that

he conducted indicates that playing violent video games "does in fact lead to aggressive behavior in

the immediate situation. . . that more aggressive thoughts are reported and there is frequently more

aggressive behavior." But this vague generality falls far short of a showing that video games are

psychologically deleterious. The County's remaining evidence included the conclusory comments

of county council members; a small number of ambiguous, inconclusive, or irrelevant (conducted

on adults, not minors) studies; and the testimony of a high school principal who admittedly had no

information regarding any link between violent video games and psychological harm.‖ ―Before the

County may constitutionally restrict the speech at issue here, the County must come forward with

empirical support for its belief that "violent" video games cause psychological harm to minors. In

this case, as we have already explained, the County has failed to present the "substantial supporting

evidence" of harm that is required before an ordinance that threatens protected speech can be

upheld.‖ The court directed the district court to issue an injunction prohibiting the enforcement of

the ordinance.

Gang Injunctions:

Based upon the common law of nuisance (a broad legal concept including activities that disturb the

reasonable use of property or endanger public health, safety, or are offensive to a reasonable

person) or specific statutory authority, a civil gang injunction prohibits gang defendants from

engaging in a variety of legal and illegal activities within an area up to several square miles. These

activities include using drugs and alcohol, discharging firearms, and trespassing. Generally lawful

conduct, such as associating with other gang members and using a cell phone may be prohibited.

Gang injunctions are typically worded to allow police authority "to disperse, or stop and frisk, or

take into custody enjoined [gang defendants] whenever they are seen violating one of the

injunction's broad provisions." By imposing fines and possible jail time for minor violations, civil

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gang injunctions are designed to prevent serious crimes by restricting disorderly conduct. A

violation of a gang injunction is prosecuted as criminal contempt of court.

In People ex rel Gallo v. Acuna, 929 P.2d 596 (Cal. 1997), the California Supreme Court upheld a

San Jose anti-gang injunction against vagueness and guilt by association challenges. The injunction

prohibited documented members of the "VST" gang from "standing, sitting, walking, driving,

gathering or appearing anywhere in public view with any other defendant herein, or with any other

known 'VST' member." In contrast, The U.S. Supreme Court in Chicago v. Morales, 527 U.S. 41,

64 (1998), affirmed a lower court judgment that a Chicago Gang Congregation Ordinance violated

the due process clause of the Fourteenth Amendment and was unconstitutionally vague because it

did not provide adequate notice of prohibited conduct and did not set adequate guidelines for law

enforcement.

Tennessee amended its nuisance statute in 2009 to include gang activity.

Tenn. Code Sec. 29-3-101

29-3-101. Definitions -- Maintenance and abatement of nuisance -- Forfeiture of property --

Payment of moneys from forfeiture into general funds.

(a) As used herein:

(1) "Lewdness" includes all matter of lewd sexual conduct or live exhibition, and includes, but is

not limited to, possession, sale or exhibition of any:

(A) Obscene films or plate positives;

(B) Films designed to be projected upon a screen for exhibition; or

(C) Films or slides, either in negative or positive form, designed for projection on a screen for

exhibition;

(2) "Nuisance" means that which is declared to be a nuisance by other statutes, and, in addition,

means:

(A) Any place in or upon which lewdness, prostitution, promotion of prostitution, patronizing

prostitution, unlawful sale of intoxicating liquors, unlawful sale of any regulated legend drug,

narcotic or other controlled substance, unlawful gambling, any sale, exhibition or possession of any

material determined to be obscene or pornographic with intent to exhibit, sell, deliver or distribute

matter or materials in violation of §§ 39-17-901--39-17-908, § 39-17-911, § 39-17-914, § 39-17-

918, or §§ 39-17-1003--39-17-1005, quarreling, drunkenness, fighting, breaches of the peace are

carried on or permitted, and personal property, contents, furniture, fixtures, equipment and stock

used in or in connection with the conducting and maintaining any such place for any such purposes;

or

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(B) A criminal gang, as defined by § 40-35-121(a), that regularly engages in gang related

conduct. "Gang related conduct" occurs when one (1) or more criminal gang member or members,

as defined by § 40-35-121(a), regularly engages in the following:

(i) Intimidating, harassing, threatening, stalking, provoking or assaulting any person;

(ii) Possessing weapons prohibited under §§ 39-17-1302 and 39-17-1307, knowingly

remaining in the presence of anyone who is in possession of such weapons, or knowingly

remaining in the presence of such weapons;

(iii) Unlawfully damaging, defacing or marking any public or private property of another or

possessing tools for the purpose of unlawfully damaging, defacing or marking any public or private

property of another;

(iv) Selling, possessing, manufacturing or using any controlled substance or drug

paraphernalia as defined in § 39-17-402, knowingly remaining in the presence of anyone selling,

possessing, manufacturing or using any controlled substance or drug paraphernalia, knowingly

remaining in the presence of any controlled substance or drug paraphernalia, driving under the

influence of any controlled substance in violation of § 55-10-401 or being under the influence of

any controlled substance in public in violation of § 39-17-310;

(v) Using, consuming, possessing or purchasing alcoholic beverages unlawfully, including,

but not limited to, public intoxication in violation of § 39-17-310 or driving under the influence of

alcohol in violation of § 55-10-401;

(vi) Criminal trespassing in violation of § 39-14-405;

(vii) Taking any action to recruit gang members or making any threats or promises to shoot,

stab, strike, hit, assault, injure, disturb the peace or destroy the personal property of anyone as an

incentive to join a gang; or

(viii) Taking any action to stop a gang member from leaving a gang or making any threats or

promises to shoot, stab, strike, hit, assault, injure, disturb the peace or destroy the personal property

of anyone as an incentive not to leave a gang;

(ix) Engaging in a criminal gang offense as defined by § 40-35-121(a);

(x) Disorderly conduct in violation of § 39-17-305; or

(xi) Contributing to or encouraging the delinquency or unruly behavior of a minor in violation

of § 37-1-156;

(3) "Person" means and includes any individual, corporation, association, partnership, trustee,

lessee, agent or assignee; and

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(4) "Place" means and includes any building, room enclosure or vehicle, or separate part or

portion thereof or the ground itself and all the property on which the nuisance is located that is

under the ownership, management or control of the violator.

(b) Any person who uses, occupies, establishes or conducts a nuisance, or aids or abets therein, and

the owner, agent or lessee of any interest in any such nuisance, together with the persons employed

in or in control of any such nuisance by any such owner, agent or lessee, is guilty of maintaining a

nuisance and such nuisance shall be abated as provided hereinafter.

(c) All motor vehicles, furnishings, fixtures, equipment, moneys and stock, used in or in connection

with the maintaining or conducting of a nuisance, are subject to seizure, immediately upon

detection by any law enforcement officer and are subject to forfeiture to the state by order of a

court having jurisdiction upon application by any of the officers or persons authorized by § 29-3-

102, to bring action for the abatement of such nuisance; provided, that seizure for the possession of

obscene matter shall be in accordance with §§ 39-17-901--39-17-908 and seizure for violations of

§§ 39-17-1003--39-17-1005 shall be in accordance with §§ 39-17-1006 and 39-17-1007. Any

property so forfeited shall be disposed of by public auction or as otherwise provided by law.

(d) All moneys from such forfeiture and all proceeds realized from the enforcement of this section

shall be paid equally into the general funds of the state and the general funds of the political

subdivision or other public agency, if any, whose officers made the seizure, except as otherwise

provided by law.

(e) (1) Upon a person's second or subsequent conviction for promoting prostitution or patronizing

prostitution, any vehicle in which such offense was committed is subject to seizure and forfeiture in

accordance with the procedure established in title 39, chapter 11, part 7; provided, however, that

nothing contained within the provisions of this subsection (e) shall be construed to authorize

seizure of such vehicle at any time prior to such conviction.

(2) The provisions of subdivision (e)(1) apply only if the violations making the vehicle subject to

seizure and forfeiture occur in Tennessee and at least one (1) of the previous violations occurs on or

after July 1, 2002, and the second or subsequent offense after July 1, 2002, occurs within five (5)

years of the most recent prior offense occurring after July 1, 2002.

Burden of proof:

Distinguish criminal and civil law, and know the burden of proof in each type of case.

Criminal law involves wrongs against society while civil law involves wrongs against

individuals. In a criminal case the government must prove guilt ―beyond a reasonable doubt‖

while in a civil case the standard is a ―preponderance of the evidence.‖ Some cases require

―clear and convincing evidence.‖ [For example, Tex. Family Code Sec. 3.003 states that property

acquired during marriage is presumed to be community property unless shown to be separate

property by clear and convincing evidence.] These are not defined and the jury decides if they have

been met.

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Felony and Misdemeanor:

Distinguish a felony and a misdemeanor. A felony is punishable in a state or federal prison

while a misdemeanor is punishable by a fine only or confinement in a local jail up to one year. The legislature decides the offenses that are crimes and the punishment for each. Texas has a ―state

jail felony‖ (up to two years in a state jail) that is somewhat midway between the traditional

categories. It was created in 1993 to reduce overcrowding in the state prison system and generally

consists of non-violent crimes and low level drug offenses. Petty offenses are technically

misdemeanors and involve such things as traffic violations.

Tenn. Code Sec. 39-14-105

39-14-105. Grading of theft.

Theft of property or services is:

(1) A Class A misdemeanor if the value of the property or services obtained is five hundred

dollars ($500) or less;

(2) A Class E felony if the value of the property or services obtained is more than five

hundred dollars ($500) but less than one thousand dollars ($1,000);

(3) A Class D felony if the value of the property or services obtained is one thousand dollars

($1,000) or more but less than ten thousand dollars ($10,000);

(4) A Class C felony if the value of the property or services obtained is ten thousand dollars

($10,000) or more but less than sixty thousand dollars ($60,000); and

(5) A Class B felony if the value of the property or services obtained is sixty thousand

dollars ($60,000) or more.

Tenn. Code Ann. § 40-35-111

40-35-111. Authorized terms of imprisonment and fines for felonies and misdemeanors.

(a) A sentence for a felony is a determinate sentence.

(b) The authorized terms of imprisonment and fines for felonies are:

(1) Class A felony, not less than fifteen (15) nor more than sixty (60) years. In addition, the

jury may assess a fine not to exceed fifty thousand dollars ($50,000), unless otherwise

provided by statute;

(2) Class B felony, not less than eight (8) nor more than thirty (30) years. In addition, the

jury may assess a fine not to exceed twenty-five thousand dollars ($25,000), unless otherwise

provided by statute;

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(3) Class C felony, not less than three (3) years nor more than fifteen (15) years. In addition,

the jury may assess a fine not to exceed ten thousand dollars ($10,000), unless otherwise

provided by statute;

(4) Class D felony, not less than two (2) years nor more than twelve (12) years. In addition,

the jury may assess a fine not to exceed five thousand dollars ($5,000), unless otherwise

provided by statute; and

(5) Class E felony, not less than one (1) year nor more than six (6) years. In addition, the jury

may assess a fine not to exceed three thousand dollars ($3,000), unless otherwise provided by

statute.

(c) A sentence to pay a fine, when imposed on a corporation for an offense defined in title 39

or for any offense defined in any other title for which no special corporate fine is specified, is a

sentence to pay an amount, not to exceed:

(1) Three hundred fifty thousand dollars ($350,000) for a Class A felony;

(2) Three hundred thousand dollars ($300,000) for a Class B felony;

(3) Two hundred fifty thousand dollars ($250,000) for a Class C felony;

(4) One hundred twenty-five thousand dollars ($125,000) for a Class D felony; and

(5) Fifty thousand dollars ($50,000) for a Class E felony.

If a special fine for a corporation is expressly specified in the statute which defines an

offense, the fine fixed shall be within the limits specified in the statute.

(d) A sentence for a misdemeanor is a determinate sentence.

(e) The authorized terms of imprisonment and fines for misdemeanors are:

(1) Class A misdemeanor, not greater than eleven (11) months, twenty-nine (29) days or a

fine not to exceed two thousand five hundred dollars ($2,500), or both, unless otherwise

provided by statute;

(2) Class B misdemeanor, not greater than six (6) months or a fine not to exceed five

hundred dollars ($500), or both, unless otherwise provided by statute; and

(3) Class C misdemeanor, not greater than thirty (30) days or a fine not to exceed fifty

dollars ($50.00), or both, unless otherwise provided by statute.

(f) In order to furnish the general assembly with information necessary to make an informed

determination as to whether the increase in the cost of living and changes in income for

residents of Tennessee has resulted in the minimum and maximum authorized fine ranges no

longer being commensurate with the amount of fine deserved for the offense committed, every

five (5) years, on or before January 15, the fiscal review committee shall report to the chief

clerks of the senate and house of representatives of the general assembly the percentage of

change in the average consumer price index (all items-city average) as published by the United

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States department of labor, bureau of labor statistics and shall inform the general assembly

what the statutory minimum and maximum authorized fine for each offense classification

would be if adjusted to reflect the compounded cost-of-living increases during the five-year

period.

In a 1968 decision the U.S. Supreme Court held that for ―petty offenses‖ punishable by

confinement for six months or less, the Sixth Amendment does not require a jury trial

[Duncan v. Louisiana, 391 U.S. 145 (1968)]. In 1972 the U.S. Supreme Court held that a state

only had to appoint an attorney for a criminal defendant if they were too poor to hire one and

faced jail time [Argersinger v. Hamlin, 407 U.S. 25 (1972)]. Most states then redefined traffic

offenses as ―petty‖ or ―summary‖ or ―infractions‖ punishable only by fine and/or license

suspension. Thus traffic offenders may be denied a jury trial in many jurisdictions. Texas does

allow a jury trial for traffic offenses but most judges don’t like this time consuming provision and

will do everything in their power to discourage an offender’s request for a jury trial. See State v.

Salyer, 2009 Tenn. Crim. App. LEXIS 486 (Tenn. Crim. App., 2009), concerning the Tennessee

requirement that a waiver of a jury trial for a traffic offense must be written and signed.

The Required Elements to Impose Criminal Liability:

What two things are generally required to impose criminal liability? Criminal offenses

require proof of a prohibited act (actus reus) and a specific state of mind or intent on the part

of an actor (mens rea).

A state of mind requirement is not required for traffic tickets (it need not be proven that you

intended to speed, for example) and in Texas municipal fines at or below $500 (such as a fine

for failing to mow the grass on a yard or vacant lot). This is because these offenses are

considered to be in the nature of civil violations (rather than criminal) and civil violations do

not require proof of state of mind. Thus ―mistake of fact‖ is a defense to the crime of larceny

(I didn’t know I was taking property belonging to another because their coat looked just like

mine in the pile of coats) but is not a defense to the tort of trespass or conversion arising from

the same event. If this appears to be a bit confusing, it is.

Most criminal statues contain some state of mind requirement such as the following 2002

(Sarbanes-Oxley Act Section 1102) federal statute provides. What concerns persons is that this

statute indicates that one may be criminally liable for document destruction even if one acts before

there is an official investigation:

18 U.S.C. Sec. 1519

§ 1519. Destruction, alteration, or falsification of records in Federal investigations and bankruptcy

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry

in any record, document, or tangible object with the intent to impede, obstruct, or influence the

investigation or proper administration of any matter within the jurisdiction of any department or

agency of the United States or any case filed under title 11, or in relation to or contemplation of any

such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

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The ―Responsible Corporate Officer‖:

Under what circumstances may corporations and a ―responsible corporate officer‖ be liable

for crimes? Corporations are liable for crimes committed by their agents and employees in

the scope of employment. [See, U.S. v. Dotterweich, 320 U.S. 277 (1943)]. Corporate directors,

officers, and employees are liable for the crimes they commit even if not committed for

personal benefit but for the good of the corporation. In United States v. Park (1975) the U.S.

Supreme Court held the CEO of a supermarket chain criminally liable for sanitation violations

because he was in a ―responsible relationship‖ to the corporation and had the power to prevent

violations, even if he did not intend the crime or even know about it. Thus there is no mens rea

requirement in these cases. [See, Hawaii v. Kailua Auto Wreckers, Inc., 615 P.2d 730 (Haw. 1980)

in which the company’s president and treasurer were held personally liable for the company’s open

burning violations.]

Do not simply follow orders. If your supervisor asks you to do something illegal, just smile

and ask him/her to put the request in writing. Better yet, quit and find other employment.

Note that an employee in charge of payroll taxes may be personally liable to the IRS as the

following partial quotation from the U.S. Code indicates:

26 U.S.C. Sec. 6672

§ 6672. Failure to collect and pay over tax, or attempt to evade or defeat tax.

―(a) General rule. Any person required to collect, truthfully account for, and pay over any tax

imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over

such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment

thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the

total amount of the tax evaded, or not collected, or not accounted for and paid over….‖

If you are in charge of the company checkbook, no matter how low your position or job title,

then you are liable. Quit if any employer asks you to not submit accurate payroll taxes ―just

this time‖ since ―we have a temporary cash flow problem.‖ It will only get worse and you will

end up with personal liability.

Corporate Criminal Liability:

Since a corporation has no physical existence, it may only be criminally liable for the acts of

employees. A corporation is vicariously liable for the actions of its employees if the

employee acted within the scope of employment, at least partially to benefit the corporation

[A.I. Credit corp. v. Legion insurance Co., 265 F.3d 630 (Seventh Cir. 2001)].

Actual authority occurs when the corporation authorizes an employee to act on its behalf.

Apparent authority means that a third party reasonably believes that the employee has the

authority to perform the action.

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Federal court decisions hold a corporation liable for the actions of its agents regardless of the

agent's position in the corporation [In re Hellenic, Inc, 252 F.3d 391 (First Cir. 2000)]. Also, an

employee's action may make the corporation liable even when the corporation has policies that

explicitly prohibit the action [United States v. Potter, 463 F.3d 9 (First Cir. 2006)].Corporations

that establish policies designed to reduce crime may receive reduced penalties [U.S. Sentencing

Guidelines Manual Sec. 8C2.5(f)].

The state law Model Penal Code contains standards for imposing corporate liability for an

employee's behavior. Actions of any agent of the corporation make the corporation liable if

liability is imposed by statute and if "a legislative purpose to impose liability on corporations

plainly appears" in the statute [Model Penal Code Sec. 2.07]. If no statute imposes liability, then

corporate liability exists only if "the commission of the offense was authorized, requested,

commanded, performed or recklessly tolerated by the board of directors or by a high managerial

agent acting on behalf of the corporation within the scope of his or her office or employment"

[Model Penal Code Sec. 2.07; United States v. Potter, 463 F.3d 9 (First Cir. 2006) states that a

specific directive is not required.].

Numerous states have enacted specific statutory language limiting corporate liability to

criminal acts committed by high managerial agents. In other states, the corporation is liable for

an employee's actions even if the corporation's directors, officers, or other high managerial

agents did not specifically approve of the employee's behavior [New Hampshire v. Zeta Chi

Fraternity, 696 A.2d 530 (N.H. 1997)].

The Model Penal Code allows a corporation to avoid liability only if it demonstrates that

supervisors with over the area where the offense occurred acted with due diligence to prevent the

crime [Model Penal Code Sec. 2.07].

Liability has been imputed to a corporation even when the agent violated a specific

company policy [United States v. Phillip Morris, Inc., 449 F. Supp.2d 1 (D.C. C. 2006)]. Actions

committed by an employee that are directly contrary to the interests of the corporation and for

which the corporation derives no benefit cannot subject the corporation to criminal liability

[United States v. Gallagher, 856 F.Supp. 295 (E.D. Va. 1994)]. A corporation is not liable when

an employee's actions are a breach of fiduciary duty to the corporation.

A corporation may be liable for a conspiracy to commit a crime involving its employees,

or for conspiracies involving one employee and a non-employee. A conspiracy involves

conduct by two or more persons who agree to commit an offense, with one or more of those

persons taking action to further the goals of the conspiracy.

Since a conspiracy requires an agreement between two or more distinct persons, the

"intracorporate conspiracy doctrine" declares that a corporation as a single entity consisting of

employees, may not be convicted of conspiring with its own employees [Denney v. City of

Albany, 247 F.2d 1171 (Eleventh Cir. 2001)]. Most courts do not apply the "intracorporate

conspiracy doctrine" to criminal cases, not desiring to shield corporations from liability. The U.S.

Supreme Court has not decided this issue.

Corporations have been held criminally liable, applying general concepts of successor

liability law, for the prior wrongdoing of a merged or consolidated corporation [United

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States v. Alamo Bank of Texas, 880 F.2d 828 (Fifth Cir. 1989)]. Sometimes dissolving the

corporation avoids successor liability, but other cases continue to impose liability [Caldwell

Trucking PRP v. Rexon Tech. corp., 421 F.3d 234 (Third Cir. 2005)]. Additionally, states by

legislation may impose liability for some time after dissolution. Delaware has a three year period

[8 Del. Code Sec. 278].

A corporation may be liable for misprision of felony, an offense of concealing and failing to

report a felony. Failing to report the crime is insufficient for a charge of misprision. Active

concealment is required. Also, corporations may be criminally liable for deliberately

ignoring criminal activity under the "willful blindness" doctrine. Here the corporate

employee or agent became suspicious of criminal violations but intentionally took no action to

investigate [A.E. Staley Manufacturing Co. v. Sec of Labor, 295 F.3d 1341 (D.C. Cir. 2002)].

Proof of actual knowledge or conscious avoidance satisfies a corporate knowledge requirement.

The "collective knowledge" doctrine aggregates many individual employee's personal

information to create the guilty intent of the corporation [United States v. Phillip Morris, Inc.,

449 F.Supp.2d 1 (D.C.C. 2006)]. The collective knowledge doctrine prevents corporations from

evading responsibility by compartmentalizing and dividing employee duties (the so called "daisy

chain" defense). If a crime requires specific intent, this intent must also be proven. Not all courts

apply the collective knowledge doctrine.

Robbery, Larceny, and Embezzlement:

Define and distinguish robbery, larceny and embezzlement. Robbery involves force or threat

of force to unlawfully take another’s property – regardless of the value of the property. So a

shoplifter of a pack of chewing gum commits a felony if he/she struggles to escape. Larceny

involves taking another’s property with the intent to permanently deprive the owner of the

property. In Texas, larceny is a felony if the value of the property taken exceeds $1500 or a bad

check is used to purchase livestock or firearms. Embezzlement involves fraudulent

appropriation of funds by one to whom they have been entrusted. A clerk might take cash

from the cash register of the store where he/she works and this is embezzlement. An intention

to return the money later is not a defense.

White Collar Crime:

White collar crime is nonviolent crime committed to obtain a financial or business advantage.

Embezzlement, as discussed above, is one type of white collar crime. The federal Mail Fraud

Act of 1990 (18 U.S.C. Sec. 1341 et seq.) prohibits using the mail or other electronic

communications to execute or attempt a scheme to defraud. A common example is mailing false or

padded invoices for goods or services. Bribery (discussed below), bankruptcy fraud, insider trading,

and theft of trade secrets are also white collar crimes. The Economic Espionage Act of 1996 (18

U.S.C. Sec. 1831 et seq.) makes it a federal crime to buy or possess trade secrets of another person,

knowing they were stolen or acquired without the owner’s authorization. Individuals face 10 years

imprisonment and up to a $500,000 fine. Corporations may be fined up to $5 million. Property

acquired or used in the violation is subject to forfeiture. In 1970 Congress enacted the Racketeer

Influenced and Corrupt Organizations Act (RICO) making it a federal crime to engage in

―racketeering activity‖ that is proven if the individual commits two or more of a list of 26 federal

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crimes and 9 state felonies. Criminal penalties include fines of up to $25,000 per violation, up to 20

years imprisonment, and asset forfeiture. Most controversially, private individuals may recover

treble damages (three times their actual loss), plus attorney fees, for business violations of

RICO. These cases are more difficult to win today than they were twenty years ago, but the easiest

type case is one in which there has already been a criminal conviction.

On June 5, 2006, in Anza v. Ideal Steel Supply Corp. the U.S. Supreme Court held that RICO

requires ―some direct relation between the injury asserted and the injurious conduct alleged‖ so Ideal could not sue Anza under RICO for failure to charge New York’s state sales tax to cash-

paying customers, allowing it to reduce its prices without affecting its profit margin and thus

placing Ideal at a competitive disadvantage.

The history of the word "Racketeering":

In Italian ricatto means blackmail. In English, a racket is an illegal organized crime business. The

"protection racket" (demanding money from legitimate businesses for "protection" from crimes that

racket itself might commit), and "numbers racket" (an illegal lottery) are famous examples. It has

been stated that the term "racketeering" was coined in 1927 by the Employers' Association of

Chicago in describing the presence of organized crime in the Teamsters Union.

Forgery and Bribery:

Note the broad definition of forgery. Precisely when does bribery occur? Forgery involves the

fraudulent making or alteration of any writing in a way that changes the legal rights and

liabilities of another. It is more than just false signatures. There are three types of criminal

bribery: bribery of public officials, commercial bribery, and bribery of foreign officials.

Bribery need not involve money but can be anything the recipient considers valuable.

Company purchasing agents are tempted in a variety of ways to give business to one supplier rather

than another and need to be very careful. Bribery occurs when the bribe is offered. It need not

be accepted. Accepting the bribe is a separate offense.

Major Defenses to Criminal Liability:

Many of the major defenses undercut the state of mind requirement. Infancy (minority)

involves underage children (as determined by state law) who are believed not yet capable of

adult thinking. This is a complex social policy area. Insanity definitions have varied over time

with the current Texas statutory definition listed below. Mistake of fact and not mistake of law is

a defense to criminal liability.

Note that mistake of fact is a defense to larceny but not to the corresponding tort of trespass

or conversion. Occasionally two identical cars will be parked in the same lot and a person will

mistakenly drive away in the wrong car. This is a defense to criminal liability but not tort liability.

Ordinarily consent is not a defense but may operate as such when one takes property with the

consent of the owner. Thus when children run off in the family car, unless the parents are willing to

file criminal theft charges, the police will not become involved. Duress is a defense when the

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threat is immediate and involves the present possibility of serious bodily injury or death and

the defendant becomes involved in the situation through no fault of his/her own.

In 1974 Patty Hurst was kidnapped by a radical group and later participated in a bank robbery. At

her 1976 trial the jury rejected the defense of duress and sentenced her to seven years in prison. She

was released after serving three years and was pardoned by President Clinton on his last day in

office.

On June 22, 2006, in Dixon v. United States, the U.S. Supreme Court decided a duress case. Dixon

was charged with receiving a firearm while under indictment and making false statements while

acquiring the firearm in violation of 18 U.S.C. Sec. 922. She asserted duress claiming that her

boyfriend threatened to harm her and her daughters if she did not purchase the guns for him. The

Court held that she had the burden of proving duress by a preponderance of the evidence rather

than, as Dixon had argued, the government having the burden to disprove, beyond a reasonable

doubt, her duress defense.

Self defense involves the use of ―reasonable‖ force under the circumstances to protect self,

others or property.

A Brief History of the Insanity Defense:

Many persons mistrust the insanity defense because they believe that insanity may be faked and

furthermore that one should not somehow escape criminal justice for a crime that he/she

committed. The Bible contains an example of feigned insanity.

I Samuel 21: 10 That day David fled from Saul and went to Achish king of Gath. 11 But the

servants of Achish said to him, "Isn't this David, the king of the land? Isn't he the one they sing

about in their dances:

" 'Saul has slain his thousands,

and David his tens of thousands'?"

12 David took these words to heart and was very much afraid of Achish king of Gath. 13 So he

pretended to be insane in their presence; and while he was in their hands he acted like a madman,

making marks on the doors of the gate and letting saliva run down his beard. 14 Achish said to his

servants, "Look at the man! He is insane! Why bring him to me? 15 Am I so short of madmen that

you have to bring this fellow here to carry on like this in front of me? Must this man come into my

house?" Chapter 22: 1 David left Gath and escaped to the cave of Adullam. When his brothers and

his father's household heard about it, they went down to him there. 2 All those who were in distress

or in debt or discontented gathered around him, and he became their leader. About four hundred

men were with him.

William Lambard (1536–1601) wrote ―Eirenarcha: or The Offices of the Justices of the Peace in

Two Books‖ in 1581. It became a standard reference book and contains the first ―modern‖

reference to the insanity defense in English law: ―If a madman or a natural fool, or a lunatic in the

time of his lunacy do [kill a man], this is no felonious act for they cannot be said to have any

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understanding.‖ In a famous English case, Queen v. M’Naughten (1843), the following rules were

created:

―(1) Persons acting under the influence of an insane delusion are punishable if they knew at the

time of committing the crime that they were acting contrary to law.

(2) Every man is presumed sane and to have sufficient reason to be held responsible for his crimes.

(3) To establish a defense on the ground of insanity it must be clearly proved that, at the time of

committing the act, the accused was laboring under such a defect of reason, from disease of the

mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did

not know he was doing was wrong.‖

These rules continue to influence U.S. law.

In recent years the insanity defense has been restricted because of fear of crime and the acquittal by

reason of insanity of John Hinckley in 1982 of his attempted assassination of President Regan.

After 1982 almost all states and the federal Congress rewrote and restricted the insanity defense.

About a dozen states allow the jury to find a defendant ―guilty but mentally ill.‖ While it is difficult

to obtain accurate statistics, the insanity defense is rarely asserted (some say in 1% of trials) and

even more rarely successful (some say one fourth of the time).

Four states, Kansas, Montana, Idaho, and Utah, do not allow the insanity defense. Defendants there

must still be competent to stand trial and may introduce evidence of mental disease to demonstrate

that they lacked mens rea (state of mind or intent) to be guilty.

In Clark v. Arizona, decided June 29, 2006, by a vote of 6:3, the U.S. Supreme Court upheld an

Arizona state law with a restrictive definition of insanity. This was the first direct challenge to a

state insanity law since the 1982 Hinckley case.

The concept of free will and accountability for actions is a Biblical concept. In Genesis 3 God

states: ―22 And the LORD God said, "The man has now become like one of us, knowing good and

evil. He must not be allowed to reach out his hand and take also from the tree of life and eat, and

live forever." From this comes individual accountability and ultimate judgment by God. Without

the knowledge of good and evil there is no guilt although society may still need to be protected

from the individual, even as the unfortunate man from Gerasenes was chained in Mark 5: ―2When

Jesus got out of the boat, a man with an evil spirit came from the tombs to meet him. 3This man

lived in the tombs, and no one could bind him any more, not even with a chain. 4For he had often

been chained hand and foot, but he tore the chains apart and broke the irons on his feet. No one was

strong enough to subdue him. 5Night and day among the tombs and in the hills he would cry out

and cut himself with stones.‖

Here is the Texas statutory definition of insanity:

Tex. Penal Code Sec. 8.01

§ 8.01. Insanity

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(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as

a result of severe mental disease or defect, did not know that his conduct was wrong.

(b) The term "mental disease or defect" does not include an abnormality manifested only by

repeated criminal or otherwise antisocial conduct.

Here is the Tennessee statutory definition of insanity:

Tennessee Code 39-11-501. Insanity.

(a) It is an affirmative defense to prosecution that, at the time of the commission of the

acts constituting the offense, the defendant, as a result of a severe mental disease or

defect, was unable to appreciate the nature or wrongfulness of the defendant's acts. Mental disease or defect does not otherwise constitute a defense. The defendant has the burden

of proving the defense of insanity by clear and convincing evidence.

(b) As used in this section, mental disease or defect does not include any abnormality

manifested only by repeated criminal or otherwise antisocial conduct.

(c) No expert witness may testify as to whether the defendant was or was not insane as set

forth in subsection (a). Such ultimate issue is a matter for the trier of fact alone.

Entrapment:

Another defense to criminal liability is entrapment. Entrapment involves a public official

providing both the opportunity and inducement to commit a crime that the defendant would

not have otherwise committed. Undercover police conducting a sting on video will ask ―are you

sure this is what you want to do?‖, etc. to avoid the defense of entrapment.

In 1982 John DeLorian, of automotive fame, successfully asserted entrapment as a defense in a trial

involving a criminal conspiracy to sell cocaine. However, the courts have held in a number of

decisions that is not entrapment for the police to leave keys in the ignitions of unlocked cars to

catch an individual committing auto theft. So, for example, the California Supreme Court in People

v. Watson (Cal., 2000) held: ―…the sting operation presented no evidence of entrapment.

Entrapment is established if the law enforcement conduct is likely to induce a normally law-abiding

person to commit the offense. The police did nothing more than present to the general community a

tempting opportunity to take the car. Some persons, including defendant, might have found the

temptation hard to resist, but a person who steals when given the opportunity is an opportunistic

thief, not a normally law-abiding person. Defendant presented no evidence of any personal contact

whatever between police and himself and could not show that the police cajoled him, gave him any

enticement or guaranty, or even knew or cared who he was.‖

Statutes of limitation:

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What are statutes of limitation? What traditional offense is not covered by a statute of

limitation? Both criminal and civil cases typically have a legislatively set time period in which

legal action must be brought. These are justified on the grounds of fairness and due process since

evidence disappears and memories fade. Murder traditionally has no statute of limitation.

Usually for the statute of limitation for a crime to run, the defendant must stay within the

jurisdiction. Leaving the jurisdiction ―tolls‖ (stops) the running of the statute of limitation for

crimes. Thus a criminal may flee to a nation without an extradition treaty with the U.S. but if

he/she later appears in the U.S., such as in an airport while flying to another nation, he/she is

subject to arrest and prosecution. Conspiracy is another way to stop the statute of limitations

because every action ―in furtherance of a conspiracy‖ is a new current event that restarts the

running of the statute of limitations.

Statutes of limitation are created or repealed by state and federal legislatures. Virginia, for

example, has no statute of limitations on felonies. Check Lexis-Nexis for any jurisdiction and

offense in question. In the Michael Skakel murder case, the offense was committed in 1975 when

Connecticut had a five year statute of limitation for murder cases that did not involve the death

penalty. In 1976 the Connecticut legislature removed the statute of limitation. In 2002 he was

convicted of murder. The Connecticut Supreme Court upheld his conviction [888 A.2d 985] and in

2006 the U.S. Supreme Court declined to review the case [127 S.Ct. 578].

History of Statutes of limitation:

Statutes of limitation date from Roman law. Latches was historically a common law defense in a

civil suit in which it is asserted that the plaintiff unreasonably delayed bringing the claim, which

should be barred. The concept involved unfairness resulting from prejudicial delay. The old equity

saying was: Equity aids the vigilant, not those who sleep on their rights.

The English Limitation Act (1623) is considered the first modern statute of limitation. It covered

civil cases in a comprehensive manner and was the law in the American colonies prior to the

revolution according to the U. S. Supreme Court in Wood v. Carpenter, 101 U.S. 135 (1879). The

English statute became the model for early state legislation.

The Juvenile Offender:

How to treat underage (non-adult) offenders is a historic problem. Some argue that the young

offender should be rehabilitated in a non-adult facility so as not to be exposed to hardened

criminals. The contrary argument is that the victim is equally injured, regardless of the age of the

offender, and if one does the crime, one should do the time. All states have a statutory procedure

(called waiver of jurisdiction) for the juvenile offender to be tried as an adult. The local

prosecutor typically initiates the procedure and a variety of information and caseworker reports is

presented to the presiding judge who makes the decision without a jury. If certified to stand trial as

an adult, the juvenile is transferred from a juvenile detention facility to the county jail. In Texas, for

capital felonies, this may occur at age 14. If over age 18 when first prosecuted, waiver may occur

for offenses committed as young as age ten. Tennessee Code 37-1-134 does not state a minimum

age for murder and other serious crimes.

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In 2010 the U.S. Supreme Court decided (5-4) that a sentence of life in prison without parole is

cruel and unusual punishment for juveniles who have not been charged with murder. Kennedy

wrote the majority opinion in Graham v. Florida. The court ruled for Terrance Jamar Graham, who

had received a life sentence without parole for participating in an armed robbery at the age of 17

when he was on probation. "Categorical rules tend to be imperfect, but one is necessary here,"

Kennedy said. "Terrance Graham’s sentence guarantees he will die in prison without any

meaningful opportunity to obtain release," Kennedy wrote, "no matter what he might do to

demonstrate that the bad acts he committed as a teenager are not representative of his true

character, even if he spends the next half century attempting to atone for his crimes and learn from

his mistakes. The state has denied him any chance to later demonstrate that he is fit to rejoin society

based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law.

This the Eighth Amendment does not permit."

Kennedy noted a ―global consensus‖ against such sentences. He cited a study finding that 11

nations authorize life without parole for juvenile offenders not convicted of murder, and only two

nations—the United States and Israel—ever impose the punishment in practice. Kennedy says the

observation supports the conclusion of unconstitutionality, even though it ―does not control our

decision.‖

Justice Thomas dissented, joined by Justice Scalia and joined in part by Justice Alito. Thomas

wrote that the court’s majority opinion is based on its conclusion that that standards of American

society have evolved so that a life sentence that would have been acceptable at the founding of the

nation is now unconstitutional. ―The news of this evolution will, I think, come as a surprise to the

American people,‖ Thomas stated.

Bail:

There are numerous types of bail including recognizance (a promise to appear at all judicial

proceedings and not to engage in illegal conduct - an amount is set but not collected unless

forfeited – called an unsecured appearance bond), surety ( a third party such as a bail

bondsman agrees to be responsible typically charging 10% of the face amount for this

service), release on conditions (such as surrendering a passport or electronic monitoring),

orders of protection (typically a restraining order to stay away from someone), cash (the

defendant must provide the full amount of the bail to the court), and combination (a mixture

of the above). If bail is not granted a suspect is remanded into custody (held on remand).

Sheriffs originally had the power to release or detain suspected criminals. Some demanded bail for

personal profit. The Statute of Westminster (1275) limited this discretion. King Charles I ordered

nobles to loan him money or be imprisoned. In the Petition of Right (1628) Parliament argued that

this practice violated the Magna Carta. The English Bill of Rights (1689) stated that excessive bail

should not be required. This was repeated in the Virginia Constitution of 1776 and became the

basis for the Eighth Amendment’s statement ―Excessive bail shall not be exacted for bailable

offenses‖. In the modern U.S. one is generally entitled to bail unless there are substantial grounds

for believing that the suspect will flee, will commit further offenses while out on bail, or will

interfere with witnesses.

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Bounty Hunting:

In Taylor v. Taintor, 83 U.S. 366 (1872), the U.S. Supreme Court established that the person into

whose custody a person accused of a crime is remanded as part of the bail procedure has broad

rights to recover that person for failing to appear in court. Generally unregulated, there is a trend to

place some restrictions on bounty hunters, usually as a result of gross negligence and

mistaken/excessive actions that resulted in negative publicity. Illinois, Kentucky, Oregon, and

Wisconsin outlaw commercial bounty hunting and Arizona and Georgia heavily regulate it. About a

dozen states require some form of licensing. In Texas only bondsmen and licensed private

investigators may recover fugitives. Tennessee Code 40-11-318 covers out of state bounty hunters

and 40-11-113 covers arrests by Tennessee bail bondsmen. Check Lexis-Nexis for state specific

details.

Nolo Contendere:

If you are involved in a traffic accident and receive a ticket that you decide to pay, you should

know that a plea of "nolo contendere" (no contest) means you do not contest the State's

charge against you. You will be found guilty upon a plea of "nolo contendere", but it is not an

admission by you that you are guilty. Also, a plea of "nolo contendere" or "no contest"

cannot be used against you in a civil suit for damages. However, a plea of guilty may be used

in a civil suit for damages. [See, for example, Olson v. Judd, 534 N.W.2d 850 (S.D. 1995)

applying these rules.] In a traffic accident case admitting a traffic violation establishes

negligence. Companies involved in regulatory violations also use ―nolo contendere‖ or agree

to a ―cease and desist order‖ for the same reason.

Immunity:

What is immunity? A prosecutor has broad discretion to decide not to prosecute or to

prosecute a less serious offense in exchange for information that the defendant has. Once

granted immunity one loses the Fifth Amendment right to remain silent. Note that a federal

grant of immunity does not automatically cover the state and vice versa. Negotiating immunity

for a client contains numerous pitfalls. Title 18 U.S.C. Sec. 6002 provides use immunity instead of

transactional immunity.

The difference between transactional and use immunity is that transactional immunity

protects the witness from prosecution for the offense or offenses involved, whereas use

immunity only protects the witness against the government's use of his or her immunized

testimony in a prosecution of the witness - except in a subsequent prosecution for perjury or

giving a false statement. The use immunity statute (18 U.S.C. § 6002) allows the government to

prosecute the witness using evidence obtained independently of the witness's immunized testimony.

Citizen’s Privilege in Reporting Suspected Crime:

There is typically an absolute or qualified privilege from suit (for torts such as defamation) granted

to citizens who in good faith report suspected crime, even if it is later determined that there was no

criminal activity. The following Indiana Supreme Court decision grants a qualified privilege.

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Williams v. Tharp, 914 N.E.2d 756, (Indiana 2009):

―The trial court believed that a qualified privilege protected Tharp's statements, and accordingly

granted summary judgment in the defendants' favor on the plaintiffs' defamation claim. We agree.

A qualified privilege "applies to communications made in good faith on any subject matter in

which the party making the communication has an interest or in reference to which he had a duty,

either public or private, either legal, moral, or social, if made to a person having a corresponding

interest or duty." Bals v. Verduzco, 600 N.E.2d 1353, 1356 (Ind. 1992) (internal quotation marks

omitted). As a defense to defamation, the qualified privilege operates not to "change the actionable

quality of the words published, but merely [to] rebut[] the inference of malice that is [otherwise]

imputed." Holcomb v. Walter's Dimmick Petroleum. Inc., 858 N.E.2d 103, 106 (Ind. 2006)

(internal quotation marks omitted). To merit its protection, "[t]he burden is upon the defendant in

the first instance to establish the existence of a privileged occasion for the publication, by proof of a

recognized public or private interest which would justify the utterance of the words." Bals, 600

N.E.2d at 1356. Then "the plaintiff … has the burden of overcoming that privilege by showing that

it has been abused." Id. When speaking of abuse, "the essence of the concept is not the speaker's

spite but his abuse of the privileged occasion by going beyond the scope of the purposes for which

privilege exists." Holcomb, 858 N.E.2d at 106-07 (internal quotation marks omitted). And "[u]nless

only one conclusion can be drawn from the evidence, the question of whether the privilege has

been abused is for the jury." Kelley v. Tanoos, 865 N.E.2d 593, 601 (Ind. 2007).

The privileged occasion implicated in this case relates to the public interest in "encourag[ing]

private citizens and victims not only to report crime, but also to assist law enforcement with

investigating and apprehending individuals who engage in criminal activity." Id. The chief benefit

is "enhanced public safety by facilitating the investigation of suspected criminal activity."

Holcomb, 858 N.E.2d at 108. Such responsible citizen conduct is also encouraged by law

enforcement agencies. The Indianapolis Metropolitan Police Department, for example, instructs the

general public as follows:

If you detect any suspicious activity in your neighborhood or anywhere, call IMPD 911. Do not

worry about being embarrassed if your suspicions prove to be unfounded. It is better to think of

what could happen if you didn't act.

Indianapolis Metro. Police Dept, Neighborhood Crime Watch TOOL KIT: A Guide to Starting,

Organizing & Maintaining Your Neighborhood Crime Watch 11 (2007). Similarly, a division of the

Indiana Department of Homeland Security provides a toll-free phone number, mailing address, and

e-mail address to encourage citizens "[t]o report suspicious activity/behavior," and instructs them to

include "[a] description of the activity with as much detail as possible," "[t]he location, date, and

time of the activity," and "[a] description of the person(s) involved in the activity." Ind. Intelligence

Fusion Ctr. Brochure 1 (2009). The brochure declares, "By remaining observant and vigilant,

Hoosiers can help further safeguard their communities. Remember to document suspicious

behavior and contact the [**13] IIFC immediately!" Id. at 2. These materials exemplify the

desirable public interest served by citizens' awareness and prompt reporting of suspected criminal

activity, even when uncertain.

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On the other hand, a reporting citizen may, out of an excess of caution or even for a nefarious

purpose, make false accusations, and our citizens' equally valid interest in having reputations

untarnished by false imputations of criminal misconduct has been a cornerstone of defamation law

for hundreds of years. See State ex rel. Lopez v. Killigrew, 202 Ind. 397, 401-02, 174 N.E. 808,

810 (1931). 2 Because of the compelling public interest in encouraging citizens to report suspected

wrongdoing, however, the law recognizes a limited defense to civil liability premised on erroneous

reports of criminal conduct to police: "[I]t is well established that in Indiana, communications made

to law enforcement to report criminal activity are qualifiedly privileged." Kelley, 865 N.E.2d at

600; see id. at 599-601 (collecting cases). 3 This Court has also noted protection for

communications to private citizens that further the same end: enhancing public safety by

facilitating the reporting of crime. Id. at 600-01. But the privilege is not without limits: a statement

"may lose its privileged character upon a showing of abuse wherein: (1) the communicator was

primarily motivated by ill will in making the statement; (2) there was excessive publication [*764]

of the defamatory statements; or (3) the statement was made without belief or grounds for belief in

its truth." Bals. 600 N.E.2d at 1356.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

2 The right of a person to have remedy by due course of law for injury to reputation is also

expressly noted in Article 1, Section 12 of the Indiana Constitution.3 Some courts hold that

statements to law enforcement are absolutely privileged, reasoning that a complaint to police is the

first step in a judicial proceeding. See Ledvina v. Cerasani, 213 Ariz. 569, 146 P.3d 70, 74-75

(Ariz. Ct. App. 2006) (collecting cases), rev. denied. In Hartman v. Keri, this Court assessed

situations in which a qualified or absolute privilege is appropriate. There, this Court found that an

absolute privilege should apply to communications to school authorities raising complaints against

educators. Hartman v. Keri, 883 N.E.2d 774, 777 (Ind. 2008). In reaffirming that citizens "reporting

suspected criminal activity to law enforcement enjoy only a qualified privilege, which subjects

them to the risk of retaliatory civil litigation for malicious or unfounded charges," we distinguished

the two situations, citing "a diminished need to deter false reporting and a greater need to

encourage reporting than exists outside the educational environment." Id. at 778.‖

An Overview of the Rules of Evidence and Procedure:

It is an open secret that the judicial system does not trust jurors. The fear is that jurors will

be swayed by irrelevant facts or emotional appeals. The following are a few examples of these

many rules. Rules of evidence are designed to prevent irrational or emotional decisions by

limiting the entire body of information that a jury may hear. Rules of Criminal and Civil

Procedure are designed to provide equality of treatment and certainty of process to a trial, both

considered essential to the granting of due process as required by the Fifth and Fourteenth

Amendments to the U.S. Constitution.

A trial verdict is not to be lightly overturned and failure to follow the rules of procedure prevents

one from challenging the outcome of a trial. The most difficult aspect of trial law is mastering the

rules of evidence and procedure. Attorneys frequently have checklists, trial notebooks, computer

data bases, or other courtroom aids to help them recall and properly follow these rules. The rules

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will vary somewhat from state to state with the broad general concepts tending to be identical.

Effective March 1, 1998, the Texas Supreme Court and the Texas Court of Criminal Appeals

created a unified set of evidence rules to govern both civil and criminal cases. Since most states

have only one high court, not two like Texas, this unified approach avoids the unnecessary

complexity that two different sets of evidentiary rules created. There are still separate rules of civil

procedure and rules of criminal procedure for civil and criminal trials.

One must properly object during trial in order to request an appellate court to overturn the decision

of a trial court. Properly objecting involves not only the proper selection of words, but also may be

a multiple step procedure – much more complex than the typical movie makes it appear. For

example in McGinn v. State, 961 S.W.2d 161 (Tex. Crim. App., 1998), the court wrote: ―It is

axiomatic that error is forfeited when the complaint on appeal differs from the complaint at trial.‖

[In other words, the trial objection and the error complained of on appeal must be identical.]

Likewise in Sauceda v. State, 129 S.W.3d 116 (Tex. Crim. App., 2004), the court wrote: ―The

standard of review for a trial court's ruling under the Rules of Evidence is abuse of discretion. If

the ruling was correct on any theory of law applicable to the case, in light of what was before the

trial court at the time the ruling was made, then we must uphold the judgment.” [In other words,

the trial judge’s decision receives every benefit of the doubt by the appellate court.] [See State v.

Moore, 1999 Tenn. Crim. App. LEXIS 361 (Tn. Crim. App., 1999) applying a similar rule.]

A shorthand summary of evidence law is that material and relevant evidence is admissible if

competent. Evidence is immaterial if the proposition it attempts to prove is not a legal issue in

the case. For example, in a worker’s compensation case (job related injury compensation) evidence

of the employee’s negligence is immaterial since the worker’s compensation statute states that

employee negligence is not a defense. Clearly an insurance company defense attorney would like to

plant this information in a fact finder’s mind.

The question of what evidence is ―relevant‖ is ancient. The Texas and Tennessee Rules of

Evidence state:

―"Relevant evidence" means evidence having any tendency to make the existence of any fact that is

of consequence to the determination of the action [material fact] more probable or less probable

than it would be without the evidence‖ (Tex./Tn. Evidence Rule 401). Rule 402 states: ―All

relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these

rules, or by other rules prescribed pursuant to statutory authority. Evidence which is not relevant is

inadmissible.‖ Rule 403 states: ―Although relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, or needless presentation of

cumulative evidence.‖ [This rule gives the trial judge broad discretion to speed-up a trial and

allows a party that is being hammered by repetitive damaging evidence to appeal to the trial

judge for relief. A classic example is the introduction of numerous gruesome crime scene

photographs by a prosecutor. The defense will request the court to limit the number of

photographs because they will tend to ―inflame the jury,‖ as is frequently stated.]

Evidence is competent if it does not violate an exclusionary rule. Exclusionary rules are typically

based upon the desire to ensure the reliability and authenticity of evidence (such as the hearsay

rule) and policies to protect social interests (such as the privilege that spouses have to not be

70

compelled to testify against one another). Hearsay is a statement made by someone other than the

witness that is testifying, offered in evidence to prove the truth of the matter asserted. For example,

Sue testifies that Charlie told her that it was raining on the day in question. There is no way to

cross-examine Charlie concerning his knowledge or bias since he is not a witness. This is

inadmissible hearsay if offered to prove that it did in fact rain on that day. There are a variety of

exceptions to the hearsay rule.

There are four basic attributes that every person who is a witness must have to some degree: the

capacity to observe, to recollect, to communicate, and to appreciate the obligation to speak

truthfully. These, along with sincerity, are the qualities which the cross-examiner attacks.

Historically at common law, persons could not testify if they had a financial interest in the

outcome, if they were the spouse of a party, if they lacked religious belief, if they had been

convicted of a crime, or if they lacked mental capacity. Modern rules of evidence have essentially

removed the common law disqualifications.

To what extent may the character or reputation of an individual, apart from the specific act in

question, be presented to the jury? The following Texas Rules of Evidence 404 and 405 address

this issue:

Rule 404 CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT;

EXCEPTIONS; OTHER CRIMES

(a) Character Evidence Generally. --Evidence of a person's character or character trait is not

admissible for the purpose of proving action in conformity therewith on a particular occasion,

except:

(1) Character of accused. --Evidence of a pertinent character trait offered:

(A) by an accused in a criminal case, or by the prosecution to rebut the same, or

(B) by a party accused in a civil case of conduct involving moral turpitude, or by the accusing

party to rebut the same;

(2) Character of victim. --In a criminal case and subject to Rule 412, evidence of a pertinent

character trait of the victim of the crime offered by an accused, or by the prosecution to rebut the

same, or evidence of peaceable character of the victim offered by the prosecution in a homicide

case to rebut evidence that the victim was the first aggressor; or in a civil case, evidence of

character for violence of the alleged victim of assaultive conduct offered on the issue of self-

defense by a party accused of the assaultive conduct, or evidence of peaceable character to rebut the

same;

(3) Character of witness. --Evidence of the character of a witness, as provided in rules 607, 608

and 609.

(b) Other Crimes, Wrongs or Acts. --Evidence of other crimes, wrongs or acts is not admissible to

prove the character of a person in order to show action in conformity therewith. It may, however,

be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident, provided that upon timely request by the

accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the

State's case-in-chief such evidence other than that arising in the same transaction.

Rule 405 METHODS OF PROVING CHARACTER

(a) Reputation or Opinion. --In all cases in which evidence of a person's character or character trait

71

is admissible, proof may be made by testimony as to reputation or by testimony in the form of an

opinion. In a criminal case, to be qualified to testify at the guilt stage of trial concerning the

character or character trait of an accused, a witness must have been familiar with the reputation, or

with the underlying facts or information upon which the opinion is based, prior to the day of the

offense. In all cases where testimony is admitted under this rule, on cross-examination inquiry is

allowable into relevant specific instances of conduct.

(b) Specific Instances of Conduct. --In cases in which a person's character or character trait is an

essential element of a charge, claim or defense, proof may also be made of specific instances of that

person's conduct.

An expert witness may give an opinion but a non-expert witness may not. Rule 701 states: “If

the witness is not testifying as an expert, the witness' testimony in the form of opinions or

inferences is limited to those opinions or inferences which are (a) rationally based on the perception

of the witness and (b) helpful to a clear understanding of the witness' testimony or the

determination of a fact in issue.‖ Rule 702 states: ―If scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training, or education may testify

thereto in the form of an opinion or otherwise.” Rule 704 states: ―Testimony in the form of an

opinion or inference otherwise admissible is not objectionable because it embraces an ultimate

issue to be decided by the trier of fact.‖ [For example, an expert may give an opinion about the

cause of death: however, a jury may have to ultimately decide if the deceased were murdered or

committed suicide.]

Precisely what expert or scientific evidence may be admitted at trial was greatly shaped by the U.S.

Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

The concern was that ―junk science‖ was being presented to juries that lacked the expertise to

evaluate it. Now the proferred (proposed) testimony must be shown to be both reliable and relevant.

Trial judges are ―gatekeepers‖ with broad discretion of the admissibility of this evidence and the

determination if a witness qualifies as an ―expert‖. One may be qualified as an expert by

knowledge, skill, experience, training, or education. Expert testimony to be admissible must satisfy

three basic criteria: 1.The underlying scientific theory must be valid; 2.The technique used in

applying the theory must be valid; and 3.The technique must have been properly applied on the

occasion [Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992)]. A variety of additional factors

may be used by the trial judge to determine reliability. These issues are typically resolved in pre-

trial hearings outside the presence of the jury.

After a verdict it is not uncommon to see jurors interviewed by the media and expressing

reservations about the verdict that they rendered. Generally these after the fact doubts are not legal

grounds for a new trial. The Texas Rules of Evidence state:

Rule 606 Competency of Juror As a Witness

(a) At the Trial. --A member of the jury may not testify as a witness before that jury in the trial of

the case in which the juror is sitting as a juror. If the juror is called so to testify, the opposing party

shall be afforded an opportunity to object out of the presence of the jury.

(b) Inquiry Into Validity of Verdict or Indictment. --Upon an inquiry into the validity of a verdict or

indictment, a juror may not testify as to any matter or statement occurring during the jury's

deliberations, or to the effect of anything on any juror's mind or emotions or mental processes, as

72

influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's

affidavit or any statement by a juror concerning any matter about which the juror would be

precluded from testifying be admitted in evidence for any of these purposes. However, a juror may

testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to

rebut a claim that the juror was not qualified to serve. [This rule means that a variety of conduct

that occurs during the jury’s deliberations, such as discussing parole, or the sharing of personal

experiences can’t be used to overturn the verdict.]

Parole:

The granting of parole (early release from prison under supervision) is broadly within the discretion

of the Tennessee Board of Probation and Parole. Texas has the Texas Board of Pardons and

Paroles. It votes in three member panels and the members have a number of voting options. Notices

are sent to trial officials, victims, and victim families prior to the parole hearing. Victims and

victim families may solicit public support in opposition to the granting of parole. Interviewing the

offender is at the discretion of the panel member. Parole panel members must grant an interview to

victims upon request.

The Board considers a variety of factors in making a decision. Some criminal offenses by statute

require the convict to serve one half or more of the sentence, day for day, before become eligible to

apply for parole. It is said that ―parole is a privilege, not a right.‖ A ―Parole Package‖ with support

letters, etc. is helpful if requesting parole. A variety of specified approval or denial reasons must be

stated by the Board. ―Good time‖ (extra credit toward parole or release) is administered under the

discretion of rules created by the Texas Department of Criminal Justice. Tennessee has the

Tennessee Department of Correction. Good time may be gained or lost for a variety of reasons.

Basic Criminal Law Coverage of the Bill of Rights:

The Fourth Amendment prohibits unreasonable searches and seizures unless a search

warrant is obtained from a judge under a showing of probable cause. The Fifth Amendment

requires due process of law, and prohibits double jeopardy and self-incrimination. The Sixth

Amendment guarantees the right to a speedy public jury trial with the right to confront

witnesses and the right to counsel. The Eighth Amendment prohibits excessive bail and fines

and cruel and unusual punishment. Know the related vocabulary such as probable cause

(reasonable grounds for believing the person should be searched or arrested), double

jeopardy (being tried twice for the same criminal offense), and self-incrimination (an

individual being compelled to testify against himself).

In a June 19, 2006, decision in two cases, Davis v. Washington and Hammon v. Indiana, the U.S.

Supreme Court held that a 911 call made before or during an incident may be admitted into

evidence during a criminal trial even if the person making the call is not a witness at the trial, but a

call made after the incident requires the caller to be available for cross examination under the Sixth

Amendment.

Double Jeopardy:

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The double jeopardy clause of the Fifth Amendment provides that no person shall ―be subject

for the same offense to be twice put in jeopardy of life or limb.‖ The Fifth Amendment

applies to the federal government and the Fourteenth Amendment has been held to apply this

protection to actions by the states. Double jeopardy protects against three events: 1. A second

prosecution for the same offense after acquittal; 2. A second prosecution for the same offense after

conviction; and 3. Multiple punishments for the same offense. Note that double jeopardy does

not apply to two trials if one is for a federal offense and the other is for a state offense. The

U.S. Supreme Court, for example, in U.S. v. Lanza, 260 U.S. 377 (1922) stated: ―An act with

respect to intoxicating liquor which is denounced as a crime by both the national and state

sovereignties may be punished under the law of each sovereignty without infringing the provision

of the Fifth Amendment to the Federal Constitution against double jeopardy for the same offense.‖

Thus there are situations in which there is an acquittal of a state criminal offense and a subsequent

trial for a federal violation. This occurred in the famous Rodney King incident in 1992 in which

police officers were acquitted of violations of California state law, but convicted of federal civil

rights violations under this provision in the U.S. Code: "Whoever, under color of any law, statute,

ordinance, regulation, or custom, willfully subjects any inhabitant of any State ... to the deprivation

of any rights, privileges, or immunities secured or protected by the Constitution or laws of the

United States ... shall be fined ... or imprisoned ....‖ 18 U.S.C. Sec. 242.

Blockburger v. U.S., 284 U.S. 299 (1932) held that a state cannot prosecute a defendant for

the same criminal act under different statutes unless each statute ―requires proof of an

additional fact which the other does not.‖ This is sometimes called the ―same-element test‖ or

―Blockburger test.‖ Various states interpret this requirement somewhat differently. Robbing

a store clerk and carjacking a customer outside the store in order to escape would be two

prosecutable offenses although part of the same criminal episode.

In the past Texas applied a double jeopardy rule called ―carving.‖ It was vague (it didn’t seem fair

to convict someone of stealing the horse and also convict him of stealing the saddle – as one

commentator stated) and discussed ―common material elements‖ or using ―the same evidence to

convict.‖ In Ex Parte McWilliams, 634 S.W.2d 815 (1982), the Texas Court of Criminal Appeals

stated: ―We now abandon the carving doctrine for the compelling reason that it encourages crime.

When the carving doctrine may be applied to a situation in which a defendant robs, kidnaps, rapes,

and murders his victim, the defendant suffers no more punishment than he would had he committed

only one of the crimes. Justice and reason demand prosecution for each of the separate offenses so

that a robber will be deterred from kidnapping, raping, and murdering the victim.‖ The Court went

on to imply that it would apply the Blockburger rule. In State v. Berry, 1994 Tenn. Crim. App.

LEXIS (1994) the Tennessee court upheld convictions for theft and arson (burning a stolen car) and

stated that it was allowable to have "carving [of] the offenses of theft and arson from these facts…

."

In 2003 England enacted legislation that a person acquitted of specified serious crimes could be

retried if ―new and compelling evidence‖, such as DNA, became known. In 2006 a man cleared of

murdering his girlfriend in 1989 after two jury trials plead guilty to murder in the first use of the

new statute.

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In the movie ―Double Jeopardy‖ (1999) the argument is made that the protagonist, having been

framed, convicted, and imprisoned for murdering her husband, could not be prosecuted for killing

him when he appeared alive in another state. But the ―dual sovereignty doctrine‖ (a state may

prosecute a criminal offense committed within its jurisdiction even if the offense has been

prosecuted in another jurisdiction) would permit re-prosecution in another state without even

having to address the more complicated double jeopardy questions the plot may have raised [Heath

v. Alabama, 474 U.S. 82 (1985)].

Business and Self-Incrimination:

Note that a proprietorship is the only business entity that may assert the privilege against self-

incrimination. Braswell v. United States, 487 U.S. 99 (1988) held that a one shareholder

corporation’s records could be subjected to a criminal subpoena even if the records would

incriminate the individual sole shareholder. This is a situation in which incorporating is

detrimental.

The Exclusionary Rule:

What is the exclusionary rule? Evidence obtained in violation of the defendant’s federal or

state constitutional rights may not be introduced in evidence at trial. This is a social policy

decision designed to restrain the power of government in general and police in particular. The U.S.

Supreme Court in Weeks v. United States, 235 U.S. 697 (1914) first applied this rule to actions of

the federal government, and Mapp v. Ohio, 368 U.S. 871 (1961) applied this standard to the states.

There are several exceptions such as ―inevitable discovery‖ (Nix v. Williams, 467 U.S. 431 (1984),

―independent source‖ (People v. Arnau, 444 N.E.2d 13 (N.Y., 1982)), and ―good faith‖ (a minor

clerical or technical error).

The Miranda Warning:

The Miranda warning arises under which of the Bill of Rights? In Miranda v. Arizona, 384

U.S. 436 (1966), the U.S. Supreme Court applied the Fifth Amendment right to remain silent

and the Sixth Amendment right to counsel. Miranda did not dictate the precise language to be

used in the warning. Know the language of the typical Miranda warning:

You have the right to remain silent. Anything you say can and will be used against you in a court of

law. You have the right to speak to an attorney, and to have an attorney present during any

questioning. If you cannot afford a lawyer, one will be provided for you at government expense.

Know some of the basic exceptions to the Miranda rule. They include public safety (Where is

the gun?) [New York v. Quarles, 467 U.S. 649 (1984).], failure to assertively ask for an

attorney, and spontaneous statements by the defendant. I saw a case once in which a drug

dealer was arrested and at booking when asked to state his profession said, with a grin, ―I’m in

sales.‖ That statement was admissible at trial even without a Miranda warning. In 2010 the U.S.

Supreme Court held that a suspect in custody who receives and understands a Miranda warning and

subsequently responds to questions after almost three hours of silence during police interrogation

75

has waived his right to remain silent. To assert the right to remain silent, one must speak-up and

assert the right to remain silent [Berghuis v. Thompkins].

Also note as a generalization that Miranda only applies if the defendant is in custody and is not

free to leave. Custody involves the deprivation of ―freedom of action in any significant way‖

according to the Miranda decision. A court must review the objective circumstances of the

interaction from the viewpoint of a reasonable person in the suspect's position. Review all the

circumstances to determine if a suspect were in custody. The location of interrogation is a

commonly considered factor. The defendant bears the burden of proving that he/she was in custody.

Detention at routine traffic stops, during meetings with probation officers, or interactions during the

execution of a search warrant are not in themselves considered custody.

Thus in the old Columbo detective television series (1971 – 1978), Columbo would talk to

suspects, asking ―one more question‖, but never gave a Miranda warning because the suspect was

not in custody. Conventional wisdom says ask: ―Am I under arrest?‖, and if the answer is

―No‖ then just leave. The more you talk, the more the police will focus upon any

inconsistency in statements or actions. On the other hand, complete consistency will

interpreted as a planned lie. Once the police focus on a suspect, there is a tendency to ignore

evidence or leads that point toward another individual. The old police saying: ―In an investigation

the clean get cleaner and the dirty get dirtier‖ indicates this tendency. Now most of the time the

suspicion is correct, but if misplaced the results may be tragic. Realize that there are public

relations and budget pressures to solve cases that apply to both law enforcement and prosecutors.

Furthermore one must be ―interrogated‖ to have a right to a Miranda warning. Many

categories of questions are not considered interrogation such as asking routine booking

questions [Pa. v. Muniz, 496 U.S. 582,(1990)] or when a private citizen questions a suspect on

his/her own initiative[U.S. v. Wall, 349 F.3d 18 (First Cir., 2003)]. Courts have also decided that

routine border questioning, general questioning at the scene, and any official questioning at a

meeting requested by a suspect is not ―interrogation‖. In Estelle v. Smith, 451 U.S. 454 (1981) the

Supreme Court held that a court-ordered psychiatric examination of the defendant was an

interrogation.

The right to remain silent may possibly originate with the trial of Jesus. Mark 14:61: “ 60

Then

the high priest stood up before them and asked Jesus, "Are you not going to answer? What is this

testimony that these men are bringing against you?" 61

But Jesus remained silent and gave no

answer.‖

In Roberts v. Florida, 874 So.2d 1225 (Fla. App., 2004) a Broward County Sheriff’s Department

Miranda warning was found to be defective because it did not indicate that the accused had the

right to have an attorney present during questioning. However, in 2010 the Supreme Court upheld

Florida's version of Miranda: "You have the right to talk to a lawyer before answering any of our

questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and

before any questioning. You have the right to use any of these rights at any time you want during

this interview." The court’s majority said the warning makes it clear that there could be a lawyer

present during questioning.

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Lying to A Federal Investigator When Not in Custody and Not Under Oath:

While one has the right to remain silent, one does not have the right to lie at any point to any

federal investigator or to create false documents, etc. The following statute, detailed below, was

used to convict Martha Stewart. If she had simply remained silent and done nothing else she would

likely have never been tried. Do not try to talk your way out of a criminal investigation. In 1998

the U.S. Supreme Court held in Brogan v. United States, 552 U.S. 349 (1998) that there was no

"exculpatory no" defense to 18 USC §1001. The Court held that a false denial of guilt by itself

perverts a proper governmental function; that the plain language of the statute allows no such

defense; and that the Fifth Amendment's right against self-incrimination was not violated by

requiring an individual to be silent rather than lie.

18 U.S.C. Sec. 1001

§ 1001. Statements or entries generally

―(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of

the executive, legislative, or judicial branch of the Government of the United States, knowingly and

willfully--

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially

false, fictitious, or fraudulent statement or entry;

shall be fined under this title, imprisoned not more than 5 years or, if the offense involves

international or domestic terrorism (as defined in section 2331 [18 USCS § 2331]), imprisoned not

more than 8 years, or both.

(b) Subsection (a) does not apply to a party to a judicial proceeding, or that party's counsel, for

statements, representations, writings or documents submitted by such party or counsel to a judge or

magistrate in that proceeding.

(c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall

apply only to--

(1) administrative matters, including a claim for payment, a matter related to the procurement of

property or services, personnel or employment practices, or support services, or a document

required by law, rule, or regulation to be submitted to the Congress or any office or officer within

the legislative branch; or

(2) any investigation or review, conducted pursuant to the authority of any committee,

subcommittee, commission or office of the Congress, consistent with applicable rules of the House

or Senate.‖

Indictment and Information:

77

Distinguish indictment and information. An indictment typically involves a felony offense and

states that the case should go to trial. An information involves a misdemeanor offense and is

issued by a public official. Which one is created by a Grand Jury? Indictment.

Unsolved Homicides Increasing in the U.S.:

Every year in America, 6,000 killers get away with murder.

The percentage of homicides that are unsolved in the United States has increased although the

overall homicide rate has fallen to1960s levels. While DNA analysis and forensic science has

dramatically improved, there is no arrest in one third of all homicides. Nationally, clearance rates

for murder and manslaughter have fallen from approximately 90 percent in the 1960s to below 65

percent. A majority of homicides are unsolved in large cities. About 185,000 killings were

unsolved from 1980 to 2008 according to FBI statistics. Drug and gang related killings have

replaced crimes of passion, where killers are easier to identify. There is also a lack of witness

cooperation in gang killings.

Death of the Criminal Defendant:

Kenneth Lay (1942-2006), CEO and Chairman of Enron from 1986 until 2002, was convicted of

securities fraud on May 25, 2006, and died on July 5, 2006, prior to his October 23, 2006,

sentencing date. His criminal conviction is vacated by the following language in U.S. v. Estate of

Andrew Clyde Parsons, 314 F.3d 745 (C.A. Fifth, 2002), a controlling precedent in Texas: ―The

general rule, uncontested by the government, is that the death of a criminal defendant pending

direct appeal of his conviction abates the criminal proceeding ab initio, as if the defendant

had never been indicted and convicted. Unpaid fines and forfeitures also abate upon a criminal

defendant's death. But the doctrine of abatement does not apply to fines, forfeitures, and restitution

paid prior to a defendant's death.‖

Subsequently in U.S. v. Parsons, 367 F.3d 409 (Fifth Cir., 2004), the court further elaborated: ―The

finality principle provides a better explanation why all prior proceedings disappear. A defendant's

death during appeal forces a court to decide between disregarding a finding of guilt and entering an

unreviewed judgment. Presumptions of innocence and a desire to ensure guilt naturally point to

extinguishing all criminal proceedings. The primary justification for the abatement doctrine

arguably is that it prevents a wrongly accused defendant from standing convicted. The Supreme

Court and other circuits have recognized this justification for abatement. We now adopt it as the

primary reason behind abatement….Accordingly, regardless of its purpose, the order of restitution

cannot stand in the wake of Parsons's death. Because he now is deemed never to have been

convicted or even charged, the order of restitution abates ab initio.‖

The government can file a civil motion for the forfeiture of assets (18 U.S.C. Sec. 981) in probate

court but this is more difficult than a criminal forfeiture. Since the criminal conviction has been

vacated, the government would likely have to reprove his guilt. The government may only obtain

―property, real or personal, which constitutes or is derived from proceeds traceable to a violation‖

but not any other assets. There is also an ―innocent owner‖ defense that may be raised under 18

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U.S.C. Sec. 983(d). The ―innocent owner‖ defense is not available in criminal forfeiture

proceedings (where the criminal conviction is final) since the forfeiture is considered part of the

criminal sentencing. When the government's assertion is that the property to be seized constitutes

criminal proceeds, the government must prove the underlying crime and demonstrate the seized

property is the tainted fruit of that crime. If the argument is that the property in question was used

to commit a criminal offense, or facilitated or was involved in the commission of a criminal

offense, the government also must prove "a substantial connection between the property and the

offense." 18 U.S.C. Sec 983 (c) (3).

Civil lawsuits for damages could proceed against his estate; however, this will be difficult and

expensive. In addition, under Texas community property laws, his surviving spouse owns one-half

of his assets. Attempts to seize assets would have to prove that the assets were purchased with

fraudulently obtained monies. Texas law has very generous exemptions for homestead, life

insurance, and annuities that will be a significant part of the assets.

The U.S. Prison Population:

Approximately seven million people, about one in every 32 American adults, were either behind

bars, on probation or on parole at the end of 2005 [Justice Department Bureau of Justice Statistics

Annual Report]. Of those, 2.2 million were in prison or jail, an increase of 2.7 percent over 2004.

Seven percent of all inmates were women (excluding local jails). About 4.1 million people were on

probation and 784,208 were on parole in 2005. From 1995 to 2003, inmates in federal prison for

drug offenses accounted for 49 percent of total prison population growth. In the 25-29 age group,

8.1 percent of Black men, about one in 13, were incarcerated, compared with 2.6 percent of

Hispanic men and 1.1 percent of white men.

The Texas Prison Population:

―The State’s (Texas) criminal justice system is at a crossroads. After the huge building cycle just

more than 10 years ago that tripled the size of the prison system to more than 154,000 beds, the

State can expect the prison population to exceed capacity by more than 11,000 beds in less than

five years under current conditions and projections.‖ [Sunset Commission Staff Advisory Report,

Texas Dept. of Criminal Justice, October, 2006]. ―In fiscal year 2005, TDCJ incarcerated

approximately 153,000 offenders in 106 prisons located throughout the state. TDCJ also provided

funding and support for 430,000 offenders on probation in 121 Community Supervision and

Corrections Departments, and TDCJ’s Parole Division supervised approximately 76,000 offenders

released on parole and mandatory supervision.‖ ―Texas has approximately 238,000 felony and

192,000 misdemeanor probationers, the largest probation population of any state.‖

The Texas average daily cost per offender in fiscal year 2004 was:

Prison Incarceration .....................$40.06

State Jail Incarceration .................$33.78

Health Care ...................................$7.40 (separate from incarceration)

Parole ............................................$3.15

Probation ......................................$2.27

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One in 100: Behind Bars in America in 2008:

In 2008, the Pew Center on the States issued a report: "One in 100: Behind Bars in America." The

report indicated that one in 30 men between the ages of 20 and 34 is behind bars, but for Black

males in that age group, the figure is one in nine. Prison growth is driven by policy choices such as

"three strikes" measures. Nationally more than one half of released offenders are back in prison

within three years. In 1987, the states spent $10.6 on corrections and in 2007 it was $40 billion, an

adjusted dollar increase of 127 percent. Adjusted spending on higher education in that period rose

21 percent. In 2008, one in one hundred adults was imprisoned in the U.S. for a total jail/prison

count in early 2008 of 2,319,258.

Quotations for Thought:

"Our defense is not in our armaments, nor in science, nor in going underground. Our defense is in

law and order."

-- Albert Einstein (1875-1955)

A cynic is a man who, when he smells flowers, looks around for a coffin. – Mencken

Discussion Practice Problems

Chapter 2 – Offenses Against Society: Criminal Law

1. Discuss two Old Testament solutions to the problem of false testimony (perjury) in court

proceedings. Are these solutions workable in our modern society?

2. Tio mistakenly takes a textbook with a $100 market value that belongs to someone else. Has

Tio committed a crime and/or a tort? If so, what category of crime or tort has Tio

committed?

3. Jerry is a high school graduate in charge of Matrix Inc. payroll tax payments. Jerry’s boss

Betty, a university graduate with a CPA certificate, orders Jerry not to remit payroll taxes

on schedule to the IRS. The IRS wants to bring legal action against Matrix, Betty, and Jerry.

Are all three liable? Do any of the three have legal defenses?

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4. A five year old child threatens a convenience store clerk with a plastic baseball bat and

says, ―Give me a package of chewing gum or I will hit you.‖ The clerk laughs but gives the

child a package of chewing gum. If there is a crime, what crime has been committed? What

defenses to criminal liability exist in this situation?

5. Acme Co. learns that Matrix Inc. has been using substandard parts on military aircraft that

Matrix builds for the U.S. government. Acme Co. lost a bidding competition to Matrix who

obtained the U.S. government contract. Does Acme have legal recourse in this situation?

Discuss.

6. A Texas bank robber flees to the nation of Serbia and lives there for twenty years.

Assuming the statute of limitations for bank robbery is five years, what legal action, if any,

may be taken against the bank robber if she returned to Texas from Serbia?

7. XYZ Co. is charged with pollution of ground water by the Environmental Protection

Agency. XYZ Co. wants to rapidly resolve these charges since they are delaying a proposed

merger between XYZ Co. and ABC Co. How should XYZ Co. proceed?

8. A criminal defendant is told by a Prosecutor in an immunity deal that ―we won’t use what

you tell us against you in any criminal trial.‖ What type of immunity is being granted? What

are the types of immunity?

9. A bank robber kills a bank security guard while robbing the bank. Discuss if the bank

robber may be tried for murder if a first trial resulted in a not guilty verdict to the offense of

bank robbery.

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10. An accountant forged the indorsement of a taxpayer client on an IRS tax refund check and

deposited the check in the accountant’s bank account. What criminal offenses has the

accountant committed? [Gilbert v. U.S., 359 F.2d 285 (Ninth Cir., 1966)]

Court Decision Problems

1. Corporate Liability

In U.S. v. Hanousek, 176 F.3d 1116 (Ninth Cir.,1999) what defense did the corporate

manager assert? What legal rules does the case illustrate?

2. Embezzlement

What were the facts and decision of the Court in United States v. Faulkner, 638 F.2d 129

(Ninth Cir. 1981)? Do you agree or disagree with the Court’s decision?

3. Business Searches

Marshall v. Barlow’s Inc., 436 U.S. 307 (1978) involved a search by what agency?

What standard of probable cause is required to issue a search warrant to search a

business?

4. Mail Fraud

What were the facts and decision of the Court in Schmuck v. United States, 109 S.Ct.

1443 (1989)?

5. Free Speech

In Simon & Schuster, Inc. v. Members of New York Crime Victim’s Board, 502 U.S.

105 (1991) what issue was before the court and why did the court decide the case the

way it did?

6. Highly Regulated Business

What New York statue was in question in New York v. Burger, 482 U.S. 691 (1987)?

How did the court justify the search?

Fact Based Problems

1. An undercover police investigator logs in to a computer chat room posing as a fifteen year

old girl. An older man, knowing the asserted age of the ―girl,‖ suggests that they meet at a

local motel for a sexual encounter. When the man checks into the motel at the arranged

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meeting time, he is arrested for attempted statutory rape under a state internet enticement

statue. Does he have a valid defense?

2. Sue lives in an apartment complex and one night hears screams and what sounds like

gunshots, but fails to call 911. May the injured person sue her for not calling 911?

3. The police have recovered DNA from a scene of a crime, but lack probable cause to obtain

a search warrant to search the suspect’s home or compel him to provide a DNA sample.

May the police search the suspect’s trash and introduce recovered DNA at his trial?

4. Francis has many traffic tickets and fears that her license will be suspended if she gets

another one. When stopped for speeding, she hands over her driver’s license to the police

officer wrapped with a $100 bill. Has she committed a crime?

5. Joe goes to the parking lot and enters and starts a car that is identical to his, using his keys,

and drives away; however, the car belongs to Maria. Has Joe committed a crime and/or a

tort?

6. The prosecution in a criminal trial wants to present evidence that its only eye witness to a

crime is a person of good character who would not lie. The defense objects stating that the

jury decides the credibility of a witness. How will the trial judge rule?