CCJS418D - Evolving Legal Issues

Jurisdiction

The ability of a prosecutor to be able to handle a case. Jurisdiction can be exclusive or concurrent.

• Concurrent jurisdiction means that multiple jurisdictions can have a trial (when the crimes occurs in multiple jurisdictions).

Venue

“The room where it happens.”

The Role of the Federal Prosecutor

• TO DO JUSTICE

• Deciding whether or not to take a case.

• Evaluating evidence to determine if it is strong enough to take a case.

The Role of Defense Counsel

• To put the prosecutor through his/her paces to ensure the trial is fair.

  • Contesting information

• Trying to get his/her client the best deal.

Investigations

The collection of incriminating evidence.

• Documents

• Testimony

• Forensic Evidence

• Physical Evidence

• Electronic Evidence

Admissible Evidence

• The evidence has to be relevant (connected) to the case.

• When there is a dispute over the relevance of evidence, the judge makes the final decision.

• The jury decides the weight of the evidence.

The “Order” in Court

1. The government has the burden of proof (they present first).

2. Case-in-Chief, then the defense case.

• Direct examination, then cross-examination

Direct Evidence

Evidence that directly proves a fact without requiring inference (i.e., security footage).

Circumstantial Evidence

Indirect proof that requires inference to connect it to a conclusion (i.e., fingerprints at a crime scene).

Demonstrative Evidence

A reenactment of a crime.

Chain of Custody

• Explaining how a piece of evidence got from the crime scene to the courtroom.

  • There can be an imperfect chain of custody.

Hearsay

A statement made out of court by a declarant used for the truth of the matter asserted.

Unfair Prejudice

There is some evidence that can be left out even if it is relevant to the case (if it unduly prejudices the case).

• Example: Photos being too graphic.

What is the Grand Jury?

• They are there to review what happened in a case.

• All federal trials happen after a prosecutor has obtained an indictment.

• Consists of 16-23 people (randomly called upon to serve).

• A prosecutor can “do business” with a minimum of 16 people (quarum).

• Members of the Grand Jury can recuse themselves if they have some connection to the case.

Aspects of the Grand Jury

• Role: Investigative and Charging

• Rule of Secrecy

• Non-Adversarial Nature

  • No judge or defense lawyer (one-sided)

Grand Jury: Ad Testificandum

Requires the person to go in front of the Grand Jury.

Grand Jury: Duces Tecum

Require an individual to provide items or information to the Grand Jury.

Function of the Grand Jury

• Compel Evidence

• Compel Testimony

• Psychological Pressure

• Immunity to Obtain Testimony

  • The right to have a lawyer (cannot enter the room)

  • The right to not incriminate yourself

• Maintain public confidence in community assessment

Target

The person who is likely to get indicted.

Subject

The government considers their behavior suspicious, and there is some risk that they have engaged in illegal activity.

• Connected to the offense.

Witness

An individual with information relevant to the case.

Grand Jury: Scope of Investigation

• No exculpatory evidence needs to be provided.

  • Any evidence that proves a crime did not occur.

• Hearsay is permissible

• Miranda warning are not necessary

• The vote is probable cause (12 need to agree)

Forwith Subpoena

A document that an agent will bring to an individual, and requires them to leave immediately.

• No probable cause for this subpoena!

What can a prosecutor do in a Grand Jury?

The prosecutor guides the investigation.

What can a prosecutor not do in a Grand Jury?

• They can’t badger the witness.

  • They can’t submit another subpoena after the Grand Jury has indicted the individual for a particular charge.

Superseding Indictment

This is used to add new charges.

Conspiracy

• One charge against multiple people.

• This crime is an agreement between two people to do something unlawful.

• There is a five year statute of limitations.

  • The last committed act had to of occurred no later than five years ago.

The Complaint

This is a formal, written legal document filed with the court, usually by a prosecutor or law enforcement officer, that initiates a criminal case and charges a defendant with a specific crime.

The Information

A written accusation filed directly by a prosecutor rather than a grand jury indictment.

What is testimonial?

Spoken word

Old Panels and New Panels

• There are instances in which a new Grand Jury hears the case (if the previous one served its time).

• If a prosecutor receives a new panel, they can read the transcript of a previous meeting heard by the old panel.

Immunity

No protection against perjury (exempts a person from liability)

Transactional Immunity

The government can’t prosecute a witness for any criminal offenses related to the subject manner.

Use Immunity

A legal protection that prevents the government from using a witness’s compelled testimony, or any evidence derived directly or indirectly from it, to prosecute them for a crime.

Overbroad Subpoena

The person receiving the subpoena does not have to respond (quashing)

Entrapment?

If you use the Grand Jury appropriately, and warnings are given, the fact that the prosecutor knows the witness will falsify is NOT entrapment.

Obstruction of Justice

One of which is “whoever corruptly or by threats of force… endeavors to influence, intimidate, or impede… the due administration of justice” shall be guilty.

United States v. Fischer

“Prosecutors have to prove that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding, or attempted to do so.”

Contempt

Disruptive behavior while in court or in front of a judge

Simple Indictment

A short indictment

Speaking Indictment

A long indictment with lots of background and detail

Jencks

Federal prosecutors must produce prior statements or reports of government witnesses to the defense for cross-examination purposes.

Charging Issues

• Prosecutorial discretion to charge

• Prosecutorial vindictiveness

  • Selective prosecution

What is prosecutorial discretion (charging issues)?

The prosecutor must pick the most appropriate charges and selects the strongest witnesses.

What is prosecutorial vindictiveness (charging issues)?

The prosecutor has “it in” for a certain group of people.

What is selective prosecution (charging issues)?

• The prosecutor should not try to prosecute the defendant for something other than the crime for which they are being charged.

• The prosecutor singles out an individual for criminal charges based on arbitrary factors such as race or religion, rather than solely on evidence of wrongdoing.

The Bill of Particulars

A judge wants more information to be released in the indictment

Setting the Stage

An indictment should provide an overview of what will be shown in the trial (and proven).

Unindicted Co-Conspirators

A prosecutor can include individuals in an indictment despite not knowing their names.

Others Known and Unknown to the Grand Jury

The prosecutor does not know the names of co-conspirators or wants to keep them private.

Sixth Amendment

“In all criminal prosecutions, the accused shall enjoy the right… to have the assistance of counsel for their defense.”

Powell v. Alabama

States must provide effective counsel to indigent defendants in capital cases (as guaranteed by the 14th Amendment).

Johnson v. Zerbst

Federal courts must provide legal counsel to all indigent defendants who cannot afford one.

Betts v. Brady

Extended the right to counsel to non-capital cases

Gideon v. Wainwright

Requires states to provide legal counsel to indigent defendants in criminal cases. This case established the standard for modern public defender systems.

Argersinger v. Hamlin

The court found that the state was obligated to provide the accused with counsel, regardless of how petty the charge, if it involves potential jail time.

Faretta v. California

Established a defendant’s right to waive counsel and defend himself.

Faretta Hearing

A court proceeding that determines if a criminal defendant can waive their right to counsel and represent themselves. The judge must ensure the request is made voluntarily, knowingly, and intelligently.

In re Ryder

An attorney cannot engage in illegal acts to assist a client.

Strickland v. Washington

Ineffective assistance of counsel requires a 2-pronged showing: serious errors such that not functioning as counsel under the 6th Amendment (deficient performance) and prejudice: showing that there was a reasonable probability the outcome would have been different.

Forfeiture

The loss or giving up of something as a penalty for wrongdoing.

Forfeiture: Proceeds

Property bought with “dirty” money.

Forfeiture: Straw Purchaser

A cover for someone to conceal that someone’s identity.

Forfeiture: Innocent Purchaser

An individual who acquires property without knowledge of its connection to illegal activity.

Restitution

An individual who commits a crime can suffer the consequences of their actions by paying money to their victims.

Furman v. Georgia

Cruel and unusual punishment applied where the application of the law is selective to minorities.

Gregg v. Georgia

The jury needs to consider aggravating and mitigating factors before sentencing someone to death.

Coker v. Georgia

A defendant cannot be sentenced to death if they raped a woman. However, if the woman dies, the defendant could be sentenced to death.

Atkin v. VA

There can be no executions for the mentally impaired.

Roper v. Simmons

There can be no executions of juveniles.

Kennedy v. LA

No executions for child rape.

Voir Dire

A specialized, often individualized, questioning process used to identify juror bias or incompetence regarding sensitive, complex, or prejudicial case details.

Bifurcated Proceedings

There is a trial to determine guilt, and a separate trial to determine the punishment.

Examples of Aggravators

• Involves national security

• Grave risk of death

• Premeditation

• Felony murder

• Prior conviction for violent crime(s)

• Cruelty

Examples of Mitigators

• Impaired capacity

• Duress

• Minor role

• No criminal record

• Mental health issues

• Upbringing

Motive for Murder

• Motive is always relevant to crimes, but seldom an element.

• Motive may give rise to aggravating and mitigating factors.

The White Collar Defendant

• Better educated

• Better social skills

• Abuse of a position of trust

• Eye toward “vulnerable” victims

Fraud

The manipulation of information that ultimately misleads or falsifies.

Mail Fruad

Use of the mail

Wire Fraud

Use of interstate wires (must pass through states or countries)

Bank Fraud

Involves a “financial institution”

• The bank has to lose money

Securities Fraud

Involves fruad in securities, like stock and convertible notes.

Convertible Notes

A form of short-term debt that converts into stock.

Shoulder Surfing

Looking at you with binoculars while you’re at an ATM.

Dumpster Diving

Thieves steal mail and garbage.

Skimming

This occurs at gas stations and convenience stores through reading devices.

Phishing

Enticements sent to victims by phony but realistic-looking websites to provide personal information.

Pharming

The web browser is directed to a site that looks like a genuine vendor with which the victim is familiar, but is actually phony. Once personal information is provided, the bad guys copy it using spyware.

The “Ponzi” Scheme

• Named for Charles Ponzi

• Promised 50% return to investors within 1.5 months

• Paid early investors with later investors’ money; Ponzi never invested and kept the proceeds.

• By 1920, he collected a quarter of a million dollars each day.

• He received a 10-year jail term

The Saga of Henry Kyle

• Similarities to Ponzi

• Vulnerable victims

• Promise of same rate of return

• Hand-delivered statements

The Saga of Dawn Bennett

False financial pictures for investors: same promised ROR as Madoff.

The Saga of Billy McFarland and the Frye Festival

• Frye Festival promoted through digital media as a luxury concert event on the island of Great Exuma.

• Big set-up led to a bigger letdown: gourmet food, Blink-182, tents, cheese sandwiches, and second-rate music.

The Saga of Bernie Madoff

• Started with OTC stocks; little regulation

• Founded Bernard Madoff Investment Securities LLC in 1960.

• Moved to hedge funds: high-risk investments, including debt securities; short selling (sell borrowed stock at a higher price, buy back at a lower price), and derivatives (betting on the future price of securities).

• Not transparent and not SEC-regulated

• 15% returns promised

• Defrauded older investors of nearly $64 billion

• Lived extravagantly

Crypto Scams

Fraudulent schemes designed to steal digital assets, often promising high, guarenteed return, free giveaways, or posing as trusted entities.

Emergency Scams

Involve fraudsters posing as loved ones in urgent trouble to demand immediate money.

Romance Fraud

Involves scammers creating fake online identities to gain a victim’s trust and affection, typically on dating apps or social media, with the ultimate goal of stealing money.

What is money laundering?

Downstream financial transaction involving tainted funds.

• Must have a SUA to charge money laundering.

Tainted Funds

Dirty money

Downstream Financial Transactions

Involve moving money (parent to subsidiary)

SUA

• Specified Unlawful Activity

• This refers to the specific, underlying criminal offense that generated “dirty money".”