CJ 3

White Collar Crime

• think : stock brokers, Ponzi Schemes, etc.

• typically financial

• nonviolent

• now often involving computers, deception and abuse of trust

• “organized crimes” and “racketeers”

• usually, but not exclusively, Federal Prosecutions

• “deep Pockets”

Sherman Anti-Trust Act (1890)

• this is a criminal act not a CIVIL ACT. It is illegal to enter into a contract or conspiracy that restricts trade or causes a monopoly. Interstate commerce must be established - very easy to do. Examples: "price fixing" and "bid rigging"

Computer Fraud & Abuse Act

• Computer Crimes

Anti-terrorism

• Patriot Act

Access Device Fraud

• PIN #s, ATM cards, account #s. Primarily Federal laws at play but most States will also have parallel laws that can be charged.

Intellectual Property

• patents, trademarks (dealing with "branded goods" Gucci, Chanel, etc "knock off" goods) copyright (books, music), trade secrets, computer code, etc

Mail and Wire Fraud

• telephone, internet, postal delivery, etc.

Securities Fraud

• SEC (The Securities and Exchange Commission) - prosecutions typically through the Department of Justice (DOJ).

Churning

• a broker’s excessive trading in a client’s account to earn commissions rather than serve the client’s interests. It can violate federal securities law and FINRA rules

Insider Trading

• the illegal practice of trading on the stock exchange to one's own advantage through having access to confidential information:

Ponzi or Pyramid Scheme

• a form of investment (illegal in the US and elsewhere) in which each paying participant recruits two further participants, with returns being given to early participants using money contributed by later ones.

Tax Fraud

• No filing of Tax Return

• Cheating on Return

• The Act targets "anyone who obstructs, delays, or affects commerce by robbery or extortion or attempts or conspires to do so or threatens physical violence

• Originally the Act was designed to go after public officials

The Hobbs Act (1964)

• this includes racketeering

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RICO

• Racketeer Influenced and Corrupt Organizations

• Prohibits the infiltration of legitimate organizations by racketeers where foreign or interstate commerce is affected.

Can you legilsate morality?

• Legislatures do it all the time

Vice

• from the Latin word "vitium" meaning fault or defect. We define vice as crimes or offenses against public decency or morality.

Fornication

• sexual intercourse between people not married to each other

Adultery

• sex between a married person and a person who is not their spouse, without the spouse's knowledge or consent

Sodomy

• Lawrence v. Texas

• sexual intercourse involving anal or oral copulation.

Bigamy

• the offense of marrying someone while already married to another person

Polygamy

• the practice or custom of having more than one wife or husband at the same time.

The Mann Act

• a U.S. federal law addressing the transportation of people across state or national borders for certain unlawful sexual purposes

Indecent Exposure

• the action or offense of intentionally showing one's body, especially one's genitals or breasts, in public in a way that is considered to be unacceptable or obscene

Voyeurism (Peeping Tom)

• the practice of gaining sexual pleasure from watching others when they are naked or engaged in sexual activity:

USSC Justice Potter Stewart stated that regarding obscenity

“I know it when I see it”

Miller v. California (1973)

• Miller v. California (1973) established the Supreme Court’s modern test for determining when material is legally obscene and therefore outside First Amendment protection

Gambling - three elements to establish gambling

• 1. Consideration (ex. $)

• 2. Prize

• 3. Chance

21st Amendment

Prohibition

DUI

Driving Under the Influence

DWI

• driving while intoxicated or driving while impaired

The Harrison Act (1914)

• U.S. law that brought opiates and coca products under federal regulation through taxation and controls on their distribution

Negative Defense

• a defendant’s denial that the plaintiff’s allegations—or one or more required elements of the claim—are true

Affirmative Defense

• a legal argument that can defeat or reduce liability even if the opposing side’s allegations are true

Burden of Proof Standards — Scales of Justice

• Highest - Beyond a reasonable doubt (criminal cases)

• Medium - Clear and Convincing Evidence (evidentiary hearing)

• Lowest - Preponderance of Evidence (civil cases) 50.1% v. 49.9%

Defense Asserting Defendant’s Lack of Capacity

• Infancy

• Intoxication - Voluntary or Involuntary

• Insanity (NGRI - Not Guilty by Reason of Insanity) M'Naghten Rule (1843) - At time of the act, could the defendant distinguish between right and wrong? Irresistible Impulse Test (1887) - Although defendant knew right from wrong, he couldn"t control his actions.

• Automatism - the performance of actions without conscious thought or intention:

Defenses Asserting Excuse or Justifications

• Duress

• Necessity

• Consent

• Mistake of Law - a misunderstanding about what the law means or how it applies to a situation

• Mistake of Fact - an honest misunderstanding about a real-world circumstance, rather than about what the law says

Deadly Force

• Force likely to cause death or serious bodily injury

Generally, to allege Self Defense after Deadly Force has been used, the person must :

• be in a place where he/she has the right to be

• acts without fault

• acts in reasonable fear or apprehension of death or great bodily injury/harm

Clean Hands Doctrine

• without fault

Battered Woman Syndrome

• escribes psychological effects that can result from ongoing intimate-partner abuse; it is not a personal failing or a reason someone is to blame for staying

Battered Child Syndrome

• a term for serious, non-accidental physical injuries inflicted on a child, typically by a parent or other caregiver

Defense of Others

• a legal defense that may justify using reasonable force to protect another person from an imminent, unlawful threat of harm

Defense of Habitation

• a legal doctrine that may justify using force to protect a home from an unlawful intrusion

Defense of Property

• may justify limited force to prevent unlawful interference with possessions, a home, or land, but the rules depend on local law

Defense to being Wrongfully Arrested

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Entrapment

• Subjective Test : the court considers whether the defendant was predisposed to commit the crime before government agents approached, and whether the government induced the offense

• Objective Test : The court focuses on whether law enforcement’s methods would likely induce an ordinarily law-abiding person to commit the crime, rather than on this defendant’s predisposition

When the defendant claims entrapment, the prosecution must show that the defendant was "willing and ready" to commit the crime in absence of the police encouragement. U.S. Court of Appeals (1994)

True

Junk Food Defense

a popular nickname for a defense argument in Dan White’s 1979 murder trial—not a claim that Twinkies alone caused the killings

PMS

• an argument that severe premenstrual symptoms affected a defendant’s mental state or behavior at the time of an alleged offense

Search and Seizure

• refers to law enforcement searching people or property and taking evidence or other items

Prime Minister William Pitt (. 1765)

• “The poorest man may, in his cottage, bid defiance to all forces of the crown”

Fruit of the Poisonous Tree

• in U.S. law, evidence directly obtained through an illegal act—and evidence discovered as a result of it—may be excluded from court

4th Amendment protections apply only to search and seizures by the police and government. No protections from private citizens

• True

• The 4th Amendment only applies within the US. Not at our borders or at US Customs.

Curtialge

• the area immediately around a home that is closely connected to everyday home life

Open Fields Doctrine

• generally allows U.S. police to search land outside a home’s protected curtilage without a warrant

Abandoned Property

• generally means that someone who intentionally gives up ownership or control of property may lose the ability to object to its being taken or searched

Inventory Search

• generally allows police to document property in a vehicle or other item already lawfully in their custody, without a warrant or probable cause, for administrative purposes—not to investigate for evidence

Consent Search

• "voluntariness" always at issue. Look to the Totality of the Circumstances to determine if truly voluntary and knowing consent

Third-party consent

• generally means permission given by someone other than the person whose rights or property may be affected. In U.S. search law, it usually refers to a person authorizing a search of a shared space or property

Dominion and Control

• generally means having the ability to possess, use, or decide what happens to property—even without physically holding it

Wiretapping and Eavesdropping

• requires a warrant

Jail and Prison Searches

Legal

Some places the 4th amendment does not apply - therefore no seach warrant is required

• Open fields

• abandoned property

• border searches

• outside the US

• Places where someone lacks a reasonable expectation of privacy

Probable Cause

• a reasonable basis, grounded in known facts and circumstances, to believe that a crime has occurred or that evidence of a crime may be found in a particular place

Totality of Circumstances

• evaluating all relevant facts together, rather than deciding a matter based on one isolated fact or a rigid rule

Affidavit

• a written statement confirmed by oath or affirmation, for use as evidence in court:

Time Limit for a search warrant

• typically 72 hours in state courts and 10 days in Federals Courts

Franks Hearing

• a special court proceeding where a defendant can argue that the police officer lied or acted with a reckless disregard for the truth in that affidavit

Exceptions to the Warrant Requirement

• PLain Vfiew

• Hot Pursuit

• Search Incident to Arrest

• Preservation of Evidence

• Stop and Frisk (terry stop)
  Drug Courier

• School Searches

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The Exclusionary Rule

• generally bars prosecutors from using evidence obtained through violations of a defendant’s constitutional rights