Chapter 8: Criminal Law and Cybercrime

Introduction to Criminal Law and Cybercrime

• Criminal law is laws that prohibit certain conduct and provide an incentive for persons to act reasonably in society and imposing penalties on persons who violate the law

• A person charged with a crime in the United States is presumed innocent until proven guilty

• The burden of proof is on the government

• The accused must be found guilty beyond a reasonable doubt

  • Conviction requires unanimous jury vote

• The accused is provided with constitutional safeguards during the criminal justice process

Crime

• Crime is any act done by an individual in violation of those duties that he or she owes to society and for the breach of which the law provides that the wrongdoer shall make amends to the public

• Penal Codes

  • A penal code is a collection of criminal statutes

  • States have adopted comprehensive penal codes that define activities considered to be crimes, and penalties imposed for their commission

  • Federal criminal code defines federal crimes

• Parties to a Criminal Action

  • Plaintiff: the government

    • The government is represented by a prosecutor

  • Defendant: the accused

    • The accused is represented by a defense attorney

    • A public defender is a government defense attorney if the accused cannot afford a private defense lawyer

Criminal Penalties

• The penalty for committing a crime may consist of the imposition of a fine, imprisonment, both, or some other form of punishment (e.g., probation)

• Imprisonment is imposed to:

  1. Incapacitate the criminal

  2. Provide a means to rehabilitation

  3. Deter others from similar conduct

  4. Inhibit personal retribution by the victim

• Federal law imposes mandatory minimum sentences for serious and violent crimes

• Many states have also enacted minimum mandatory sentences for certain crimes and repeat offenders

• Instead of a fixed mandatory sentence, many jurisdictions provide a sentencing range for the commission of different crimes, and court may impose a sentence within that range

Classification of Crimes

• Crimes are classified from serious to minor

• A crime is usually classified as a (1) felony, (2) misdemeanor, or (3) violation

(1) Felony

• Felonies are the most serious type of crime; inherently evil crime (“mala in se”)

• Most crimes against persons and some business-related crimes are felonies

• Punishable by imprisonment for a year or more

• In some jurisdictions, certain felonies (e.g., first-degree murder) are punishable by death

• Many statutes define different degrees of crimes (e.g., first-, second-, and third-degree murder)

• Example Most crimes against persons (e.g., murder, rape) and certain business-related crimes (e.g., embezzlement, bribery) are felonies in most jurisdictions.

(2) Misdemeanor

• Misdemeanors are a less-serious crime; not inherently evil but prohibited by society (“mala prohibita”)

• Many crimes against property are misdemeanors

• Misdemeanors carry lesser penalties than felonies

  • They are usually punishable by fines and/or imprisonment for one year or less

• Example Many crimes committed against property, such as robbery, burglary, and less serious violations of regulatory statutes, are classified as misdemeanors in most jurisdictions

(3) Violation

• Violations are the least serious of crimes; neither a felony nor a misdemeanor

• Usually punishable by a fine

• Example Crimes such as traffic offenses and jaywalking

Intent Crimes

• Most crimes require criminal intent (the requisite state of mind when an act was performed for an accused to be fund guilty of an intent crime) to be proven before the accused can be found guilty of the defined crime

• Two elements must be proven for a person to be found guilty of an intent crime: (1) criminal act (actus reus) AND (2) criminal intent (mens rea)

(1) Criminal Act (actus reus)

• Actus reus (“guilty act”) is the actual performance of a criminal act

• Sometimes, the omission of an act can constitute the requisite actus reus

(2) Criminal Intent (mens rea)

• Mens rea (“evil intent”) is the possession of the request state of mind to commit a prohibited act

• Juries may infer a defendant’s intent from the facts and circumstances of the case

• Many jurisdictions have defined intent crimes as either general intent crimes or specific intent crimes:

  • (a) Specific intent crime: a crime that requires that the perpetrator intended to achieve a specific result from his or her illegal act

    • Example Premeditated murder is a specific intent crime because the perpetrator intends a specific result, the death of the victim. Arson, forgery, and fraud are other examples of specific intent crimes.

  • (b) General intent crime: a crime that requires that the perpetrator either knew or should have known that his or her actions would lead to harmful results

    • The government does not have to prove that the accused intended the precise harm that resulted from his or her actions

    • Example Assault and battery are usually considered general intent crimes because the perpetrator intends to commit the crime but does not know the actual result of the crime in advance.

• Merely thinking about committing a crime is not a crime because no action has been taken

Nonintent Crimes

• Nonintent crimes are crimes that imposes criminal liability without a finding of intent (mens rea)

• Often imposed for reckless or grossly negligent conduct that causes injury to another person

• Example The crime of manslaughter only requires that a person acted with recklessness or gross negligence when someone is killed or injured. A speeding automobile driver who kills a pedestrian may not have intended to kill the victim, but will be found guilty of the nonintent crime of manslaughter.

Strict Liability Crimes

• Strict liability crimes are a crime that impose criminal liability for the commission of a prohibited act without requiring proof of intent, recklessness, or grossly negligent conduct

• Example Drunk driving laws provide that a person who is driving with a blood alcohol level above a stipulated level is guilty of the crime of drunk driving. The state does not have to prove that the driver knew that his or her blood alcohol level exceeded the lawful limit

Criminal Procedure

• The procedure for initiating and maintaining a criminal action is quite detailed

• It includes both pretrial procedures and the actual trial

• The phases are:

  1. Arrest

  2. Booking

  3. Bail and Bail Bonds

  4. Indictment or Information Statement

  5. Arraignment

  6. Criminal Trial

Step 1: Arrest [Criminal Procedure]

• Before the police can arrest a person for the commission of a crime, they usually must obtain an arrest warrant based on a showing of probable cause

  • Arrest warrant: a document for a person’s detainment based on a showing of probable cause that the person committed a crime

  • Probable cause: evidence of the substantial likelihood that a person either committed or is about to commit a crime

• An arrest can be made without obtaining an arrest warrant if it is based on probable cause and that there is no time to obtain one or it is otherwise not feasible to obtain a warrant prior to the arrest, known as a warrantless arrest

• Warrantless arrests allowed when police arrive during:

  • Commission of crime

  • A person is fleeing from the scene of crime

  • A situation where evidence is likely to be destroyed

Step 2: Booking [Criminal Procedure]

• Booking is the administrative procedure for recording an arrest and collecting other information from the suspect

  • Fingerprinting the suspect, taking a mug shot, taking a DNA sample

Step 3: Bail and Bail Bonds [Criminal Procedure]

• Bail is an amount of money established by a court that a person who has been arrested may post with the court in order to be released from custody, usually jail, pending the trial of his or her case

• A bail bond is an instrument that is purchased from a bail bondsperson by a person who has been arrested and ordered to post a bond with the court in order to be released from custody, usually jail, pending the trial of his or her case

  • The bail bondsperson submits the bail bond to the court in substitution for the bail that the arrested person would be required to post

Step 4: Indictment or Information Statement [Criminal Procedure]

• An accused is formally charged with a crime before being brought to trial

  • This is usually done through an (1) indictment issued by a grand jury or an (2) information statement issued by an attorney of the government or a magistrate judge

(1) Indictment

• Indictment: charge of having committed a crime, based on the judgment of a grand jury

  • A grand jury is a special jury that hears evidence of serious crimes against an accused person, evaluates the evidence presented, and determines whether there is enough evidence to hold the accused while awaiting trial and issues an indictment

    • Note that the grand jury does not determine guilt or punishment

    • If an indictment is issued, the accused will be held for later trial

(2) Information Statement

• Information statement: the charge of having committed a crime (usually a misdemeanor), based on the judgment of a judge (magistrate) or prosecutor

  • A magistrate judge is a judge who hears evidence of lesser crimes against an accused person, evaluates the evidence presented, and determines whether there is sufficient evidence to hold the accused for trial

    • Does not determine guilt

Step 5: Arraignment [Criminal Procedure]

• An arraignment is a hearing during which the accused is brought before a court and is (1) informed of all charges and (2) asked to enter a plea

  • Guilty: states that he or she committed the alleged crime

  • Not guilty: states that he or she did not commit the alleged crime

Nolo Contendere

• A party may enter a plea of nolo contendere whereby the criminal defendant agrees to imposition of a penalty but does not admit guilt

• A nolo contendere plea cannot be used as evidence of liability against the accused at a subsequent civil trial

• Example The government brings charges against a corporation for criminally violating environmental pollution laws. The government and the corporation enter into an agreement whereby the corporation pleads nolo contendere and agrees to pay a fine of $5 million but does not plead guilty to the violation

Step 6: Plea Bargain [Criminal Procedure]

• A plea bargain is negotiations between the accused and the government prior to trial with the intent of avoiding a trial

• Plea bargain agreement: agreement in which the accused admits to a lesser crime than charged

  • In return, the government agrees to impose a lesser sentence than might have been obtained if tried

• The government engages in plea bargaining to save costs, avoid the risks of a trial, and prevent further overcrowding of the prisons

• Approximately 95% of criminal cases are plea bargained and do not go to trial

  • Of those that go to trial, the government wins a conviction in approximately 75%

Criminal Trial

• Verdict must be unanimous

  • If even one juror disagrees (i.e., has reasonable doubt) about the guilt of the accused, the accused cannot be found guilty of the crime charged

• After trial, the following rules apply:

  • If the defendant is found guilty, he or she may appeal

  • If the defendant is found not guilty, the government cannot appeal

  • If the jury cannot come to a unanimous decision about the defendant’s guilt one way or the other, the jury is considered a hung jury

    • In this situation, the government may choose to retry the case before a new judge and jury

Common Crimes

• Murder

• Robbery

• Burglary

• Larceny

• Theft

• Receiving Stolen Property

• Arson

Murder

• Murder is the unlawful killing of a human being by another person without justification

• Different degrees of murder depending upon level of intent

• (1) First-Degree Murder

  • First-degree murder is the intentional unlawful killing of a human being by another person with premeditation, malice aforethought, and willful act

  • When a person can be executed for committing the murder, it is referred to as capital murder

• (2) Second-Degree Murder

  • Second-degree murder is the intentional unlawful killing of a human being by another person that is not premeditated or planned in advance

  • Second-degree murder involves some deliberation but not long-term planning

• (3) Voluntary Manslaughter

  • Voluntary manslaughter is the intentional unlawful killing of a human being by another person that is not premeditated or planned in advance and that is committed under circumstances that would cause a person to become emotionally upset

  • Some states refer to this crime as third-degree murder

• (4) Involuntary Manslaughter

  • Involuntary manslaughter is the unintentional unlawful killing of a human being by another person that is caused from a reckless or negligent act

  • Some states refer to this crime as negligent homicide

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Felony Murder Rule

• Felony murder rule is a rule that stipulates that if a murder committed during commission of another crime, even though the perpetrator did not originally intend to commit murder, the perpetrator is liable for the crime of murder

  • Intent to commit murder is inferred from intent to commit another crime

• Many states also hold accomplices liable under this doctrine

Robbery

• Robbery is the taking of personal property from another person by use of fear or force

• If a weapon is used, it is considered armed or aggravated robbery and carries a harsher penalty

Burglary

• Burglary is the taking of personal property from another’s home, office, or commercial or other type of building

Larceny

• Larceny is the wrongful and fraudulent taking of another person’s personal property that is not robbery or burglary

  • Most personal property—including tangible property, trade secrets, computer programs, and other business property—is subject to larceny

• Force or entry into a structure not required

• Some distinguish between grand and petit larceny, based on the value of property taken

Theft

• Some states group robbery, burglary, and larceny together under the general crime of theft

• Theft is a crime that does not distinguish among and includes the crimes of robbery, burglary, and larceny

Receiving Stolen Property

• A person commits the crime of receiving stolen property if he or she (1) knowingly receiving stolen property and (2) intends to deprive the rightful owner of that property

• The stolen property can be any tangible property (e.g., personal property, money, negotiable instruments, and stock certificates)

Arson

• Arson is the malicious or willful burning of another’s dwelling

• Latest law applies to burning all types of structures (private, commercial, and public buildings)

• Includes willful burning by structure’s owner

Business and White-Collar Crimes

• White-collar crime is crime often committed by businesspeople

  • Such crimes usually involve cunning and deceit rather than physical force

• Types:

  • Forgery

  • Embezzlement

  • Bribery

  • Extortion

  • Criminal Fraud

  • Mail Fraud / Wire Fraud / Electronic Communications Fraud

  • Money Laundering

  • Racketeer Influenced and Corrupt Organizations Act (RICO)

  • Criminal Conspiracy

Forgery

• Forgery is the fraudulent making or alteration of a written document that affects the legal liability of another person

• Counterfeiting, falsifying public records, and materially altering legal documents are examples of forgery

• Note that signing another person’s signature without intent to defraud is not forgery

Embezzlement

• Embezzlement is the fraudulent conversion of property by a person to whom that property was entrusted

  • The key element here is that the stolen property was entrusted to the embezzler

    • This differs from robbery, burglary, and larceny, where property is taken by someone not entrusted with the property

Bribery

• Bribery (or payoff, kickback) is a crime in which one person gives another person money, property, favors, or anything of value for a favor in return

• Intent is a necessary element of this crime

• Offeror commits crime when bribe is offered

  • he offeror can be found liable for the crime of bribery even if the person to whom the bribe is offered rejects the bribe

• Offeree commits crime when bribe is accepted
  

Extortion

• Extortion (or blackmail) is a threat to expose something about another person unless that other person gives money or property

  • The truth or falsity of the information is immaterial

• Blackmail: extortion of private persons

• Extortion under color of official right: extortion of public officials

Criminal Fraud

• Criminal fraud (or false pretenses, deceit) is a crime that involves obtaining title to property through deception or trickery

• ALL elements of criminal fraud are:

  1. The perpetrator makes a misrepresentation of a material fact

  2. The perpetrator knows that the alleged fact is false

  3. The misrepresentation is made with the intent to defraud

  4. The victim justifiably relies on the misrepresentation

  5. The victim suffers actual loss from the reliance

Mail Fraud / Wire Fraud / Electronic Communications Fraud

• Mail fraud is the use of mail or other covered means of delivery (e.g., U.S. Postal Service, Federal Express) to defraud

• Wire fraud is the use of wires (e.g., telephone, radio, television) to defraud

• Electronic communications fraud is the use of electronic communication devises and systems (e.g., computer, email, internet) to defraud

Money Laundering

• Money laundering is the crime of running illegally obtained money through legitimate business to “wash” the money to make it look like it was earned legitimately

• The Money Laundering Control Act, is a federal statute that makes it a crime to:

  1. Knowingly engage in monetary transaction through financial institution involving property from unlawful activity worth more than $10,000

     • Ex: making deposits, withdrawals, money orders, checks

  2. Knowingly engage in financial transaction involving proceeds of illegal activity

     • Ex: buying real estate, automobiles

• If convicted, fines of up to $500,000 or twice the value of property – whichever is greater – and sentenced to up to 20 years in federal prison

  • Violation of the act subjects any property involved in or traceable to the offense to forfeiture to the government

Racketeer Influenced and Corrupt Organizations Act (RICO)

Criminal RICO

• Criminal RICO: federal crime to acquire or maintain an interest in, use income from, or conduct or participate in the affairs of an enterprise through a pattern of racketeering activity

  • An enterprise is defined as a corporation, a partnership, a sole proprietorship, another business or organization, or the government

  • Racketeering activity consists of a number of specifically enumerated federal and state crimes, including activities such as gambling, arson, robbery, counterfeiting, and dealing in narcotics

  • To prove a pattern of racketeering, at least two of these acts must be committed by the defendant within a 10-year period

    • Commission of the same crime twice within this 10-year period constitutes criminal RICO as well

Civil RICO

• Civil RICO: persons injured by a RICO violation can bring a private civil RICO action against the violator to recover for injury to business or property

  • A successful plaintiff may recover treble damages (three times the actual loss) plus attorney’s fees

Criminal Conspiracy

• Criminal conspiracy is a crime in which two or more persons enter into an agreement to commit a crime, and an overt act is taken to further the crime

• To be liable for criminal conspiracy

  • A person must commit an overt act to further the crime

  • The crime itself does not have to be committed, however

• The government usually brings criminal conspiracy charges if (1) the defendants have been thwarted in their efforts to commit the substantive crime or (2) there is insufficient evidence to prove the substantive crime

• Example Two securities brokers agree over the telephone to commit a securities fraud. They obtain a list of potential victims and prepare false financial statements necessary for the fraud. Because they entered into an agreement to commit a crime and took an overt act, the brokers are guilty of the crime of criminal conspiracy, even if they never carry out the securities fraud.

Corporate Criminal Liability

• A corporation is a fictitious legal person created by the state

  • A corporation cannot act on its own behalf

    • Instead, it must act through agents, such as a board of directors, officers, and employees

• Traditionally, corporations could not be held liable for crimes

• However, modern courts do impose corporate criminal liability, criminal liability of corporations for the acts of their directors, officers, and employees

  • Punishment is limited to fines, loss of licenses, or loss of franchise

Regulatory Crimes

• Federal and state governments have enacted many regulatory statutes that regulate various aspects of business and the environment

  • Some statutes make violations a criminal offense

• Regulatory crimes include violations of securities, antitrust, environmental, consumer, employment, credit, bankruptcy, intellectual property, and other statutes

Cybercrimes

• Cybercrime is crime that is committed using computers, email, the internet, and other electronic means

• One of the most pervasive monetary crimes today is internet fraud

• Counterfeit Access Device and Computer Fraud and Abuse Act (CFAA)

  • Federal crime to use a computer knowingly to obtain:

    • Restricted federal government information

    • Financial records of financial institutions

    • Consumer reports of consumer reporting agencies

    • Use counterfeit or unauthorized access​ devices, such as cards or code​ numbers, to obtain things of​ value, transfer​ funds, or traffic in such devices

The Internet and Identity (ID) Theft

• Identity (ID) theft is the stealing of information about another person to pose as that person and take the innocent person’s money or property or to purchase goods and services using the victim’s credit information

• In 1998, Congress enacted the Identity Theft and Assumption Deterrence Act, which made it a federal crime to engage in identity theft

  • This statute makes it a federal crime to transfer or use, without authority, the identity of another person knowingly and with the intent to commit any unlawful activity as defined by federal law and state and local felony laws

Computer Fraud and Abuse Act (CFAA)

• The Computer Fraud and Abuse Act (CFAA) is a federal statute that makes it a federal crime to access a computer knowingly to obtain:

  1. Restricted federal government information

  2. Financial records of financial institutions

  3. Consumer reports of consumer reporting agencies

• The act applies to any “protected computer” which is connected to the internet, which includes desktop and laptop computers, cellphones, smart devices, tablets, and websites

• The CFAA has been amended by the Information Infrastructure Protection Act (IIP Act), which makes it a crime for anyone to access and acquire information intentionally from a protected computer without authorization

Electronic Communications Privacy Act (ECPA)

• The Electronic Communications Privacy Act (ECPA) is a federal statute that makes it a crime to intercept an electronic communication at the point of transmission, while in transit, when stored by a router or server or after receipt by the intended recipient

• The act covers traditional telephone wiretaps, smartphone interceptions, email, electronic messages, digital data, voicemail systems, recording or videotaping private face-to-face conversations, web-streaming video, and the like

• Major sections of the ECPA are the Wiretap Act and the Stored Communications Act

Wiretap Act

• The Wiretap Act makes it a federal crime to use an electronic, mechanical, or other device to intentionally intercept, disclose, or use the contents of any oral, wire, or electronic of another party at the point of transmission, while in transit, and after receipt by the intended recipient

• The unauthorized recording of another’s telephone conversation or reading another’s email or text messages would violate the act

• Federal intelligence agencies may obtain a court order to monitor telephone and internet-based conversations if they prove to a judge that they have probable cause to believe that the wiretap will help them solve a serious crime or prevent an act of terrorism

Stored Communications Act (SCA)

• The Stored Communications Act (SCA) makes it a federal crime to intentionally review the contents of files of a subscriber stored by a third-party internet service provider

• Stored electronic communications may be accessed without violating the law by (1) a party or entity that is providing the electronic communication service, such as an employer accessing stored email communications of employees placed on the employer’s service; and (2) government and law enforcement entities that are investigating suspected illegal activity

Fourth Amendment Protection from Unreasonable Search and Seizure

• The Fourth Amendment protects persons and corporations from overzealous investigative activities by the government

  • It protects the rights of the people from unreasonable search and seizure (without probable cause) by the government

• Reasonable search and seizure by the government is lawful

  • Search warrants based on a probable cause are necessary in most cases

    • Government may not search businesses without a search warrant

  • General searches beyond the specified area are forbidden

• A warrantless search is permitted only (1) incident to arrest, (2) where evidence is in “plain view,” or (3) in exigent circumstances such as when it is likely that evidence will be destroyed

Exclusionary Rule

• Under the exclusionary rule, evidence obtained from an unreasonable search and seizure is prohibited from introduction at a trial or proceeding against person searched

  • The good faith exception allows evidence obtained illegally to be introduced as evidence against the accused if the police officers who conducted the unreasonable search reasonably believed that they were acting pursuant to a lawful search warrant

Case 8.1 Search of Curtilage

• Case

  • Collins v. Virginia

  • Supreme Court of the U.S., 138 S.Ct. 1663 (2018)

• Facts

  • Police conducted a search of the curtilage (the land immediately surrounding the house) of a defendant’s house without a warrant

• Issue

  • Does the 4th Amendment permit an officer, uninvited and without a warrant, to search the curtilage?

• Decision

  • The U.S. Supreme Court held that the warrantless search of the curtilage of the home violated the Fourth Amendment

  • The Court reversed the decision of the Virginia Supreme Court and remanded the case for further proceedings

Search of Electronic Information

• The government can use electronic information taken from electronic devices

  • However, the government must establish probable cause that the information is relevant and obtain a search warrant to acquire it

• Example Penelope is arrested on suspicion of operating an internet fraud, and is indicted. The government, in preparation for the criminal trial, can, based on probable cause, obtain a search warrant to access information on her computer and other digital devices.

Search of Cellphones Incident to Arrest

• Riley v. California

  • The U.S. Supreme Court held that the police cannot conduct a warrantless search of a person’s cellphone incident to that person’s arrest

  • The police must show cause and obtain a search warrant before searching an arrestee’s cellphone

Clarifying Lawful Overseas Use of Data Act (CLOUD Act)

• The Clarifying Lawful Overseas Use of Data Act (CLOUD Act) of 2018 established rules about how tech companies must respond to warrants issued by law enforcement agencies located in the U.S. and foreign countries

  • Provides for a streamlined process whereby law enforcement agencies can serve warrants directly on tech companies to obtain user data

• Provisions:

  1. Provision for U.S. law enforcement agencies to obtain access to user data stored in foreign countries

  2. Provision for the United States to create executive agreements with foreign countries permitting law enforcement agencies of each country to have access to user data stored in the other country

     • Permits the executive branch of the federal government to enter into bilateral data sharing agreements with foreign countries allowing a foreign government to serve a warrant directly to a U.S. technology company to obtain a targeted​ user's electronic​ data

Searches of Business Premises

• Generally, the government does not have the right to search business premises without a search warrant

  • Exception: hazardous and highly-regulated industries are subject to warrantless searches if proper statutory procedures are met

    • Ex: sellers of firearms, liquors stores and bars

Fifth Amendment Privilege Against Self-Incrimination

• The Fifth Amendment states that no person “shall be compelled in any criminal case to be a witness against himself or herself”

  • The right is known as the privilege against self-incrimination, whereby a person does not need to be a witness against him- or herself in any criminal case

• Protects only natural persons who are accused of crimes

  • Therefore, artificial persons (e.g., corporations, limited liability companies, partnerships) cannot raise this protection against incriminating testimony

Miranda Rights

• Miranda rights are rights that a suspect must be informed of before being interrogated so that the suspect will not not unwittingly give up his or her Fifth Amendment rights

  • The following is read out to suspect before interrogation:

    • You have the right to remain silent

    • Anything you say can and will be used against you

    • You have the right to consult a lawyer and to have a lawyer present

    • If you cannot afford a lawyer, a lawyer will be appointed free of charge

• Any statements or confessions obtained from a suspect before he or she has been read the Miranda rights can be excluded from evidence at trial

Attorney-Client and Other Privileges

• Attorney-client privilege is a rule that says a client can tell his or her attorney anything about the case without fear that the attorney will be called as a witness against the client

  • For the privilege to apply, the information must be told to the attorney in his or her capacity as an attorney and not as a friend or neighbor or in other capacity

Other Privileges

• Psychiatrist/psychologist-patient privilege

• Priest/minister/rabbi/imam-penitent privilege

• Spouse-spouse privilege

• Parent-child privilege

Non-Privileges

• No accountant-client privilege under federal law

  • An accountant can be called as a witness in cases involving federal crimes

• Some states have adopted accountant-client privilege

  • Unenforceable in federal courts and states that do not have the statute in effect

Immunity from Prosecution

• Immunity from prosecution is the government’s agreement wit ha person not to use any evidence given by that person against that person

• Government may offer a person immunity from prosecution in exchange for testimony

• Once granted, the person loses the right to assert Fifth Amendment privilege

Other Constitutional Protections

Fifth Amendment Protection Against Double Jeopardy

• The Double Jeopardy Clause of the Fifth Amendment provides that persons cannot be tried twice for same crime

• If the same act violates the laws of two or more jurisdictions, each jurisdiction may try the accused

• If an accused is tried once and the jury reaches a hung jury decision—that is, the verdict is not unanimously either guilty or not guilty—the government can retry the case against the accused without violating the Double Jeopardy Clause

Sixth Amendment Right to a Public Jury Trial

• The Sixth Amendment guarantees that a criminal defendant the right to a public jury trial, the right to have a speedy trial, the right to examine witnesses, and other trial-related rights

• The Speedy Trial Act is a federal statute that requires that a criminal defendant in a federal case be brought to trial within 70 days after indictment

Eighth Amendment Protection Against Cruel and Unusual Punishment

• The Eighth Amendment protects criminal defendants from cruel and unusual punishment (ex: torture and other cruel and abusive punishment

• However, this clause does not prohibit capital punishment (ex: lethal injection)