INTRODUCTION. First of all, criminal law is related to other branches of law, but it is dealt with separately by
our legal system.
II. DEFINITION OF CRIME. The first thing we must do is "define" what a crime is. A crime is a social harm
defined and made punishable by law. Keep concepts are:
A. It is an offense against the state for which the state may institute a legal action.
B. The victim of a crime does not bring the criminal action. ONLY the state, through the prosecutor, may
bring formal criminal charges.
C. One key difference between a civil and a criminal wrong is that a civil wrong are generally intended to
compensate the injured party, while a criminal wrong is concerned with punishing the wrongdoer.
III. CLASSIFICATION OF CRIMES. The text states that crimes are classified as felonies or misdemeanors
according to their seriousness. Two thing are usually looked at:
(1) the first is the type of prison the individual is
sent to (2) the second is the length of the prison sentence.
A. Felonies. AS the text states, felonies are the more serious crimes. These crimes are usually punishable
by death or imprisonment for more than one year.
1. Felony-Murder Rule. The text also mentions the felony murder rule. This rule states that if a
someone is killed during the commission of a crime, the wrongdoer can be charged with murder,
even if he did not actually kill the person.
a. Example. Guber and Gomer decides to go to Mount Pilot to hold up the local bank.
After the holdup, Gomer puts his coat and hat on another person as a disguise.
The
police shoots that person thinking it was Gomer.
Question. Can Guber and Gomer be charged with felony-murder.
Answer. Yes, because the crime was still being committed and any death occurring
during the commission of the crime can be considered felony-murder.
B. Misdemeanors. Misdemeanors are crimes punishable by a fine or confinement for less than one year.
C. Attempt. An attempt to commit a crime is just what it says. It is a step toward a criminal act with
specific intent to commit that particular offense. BUT for some reason, the act can't be carried out.
1. Mere preparation is not sufficient. Preparing to commit a crime is not an attempt. Again, there
must be a step toward a criminal act.
D. Conspiracy. Conspiracy is an agreement between two or more persons to engage in an unlawful act.
Two important points:
1. Conspiracy is a crime in itself and no other act need be committed.
2. With some crimes, you merge them into the bigger crime. Conspiracy doesn't merge with
anything.
3. Example 1:. Guber, Gomer and Earnest T. Bass agree to holdup Mayberry National Bank. The
holdup occurs at 3:00 pm. By 4:00pm Andy and is faithful deputy Barney captures the trio.
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Question. What crimes can Guber, Gomer and Earnest T. be convicted of?
Answer. They can be convicted of robbery because the actually robbed the bank. They can also
be convicted of conspiracy because they made an agreement to rob the bank.
4. Example 2: Suppose, on the way to the bank Gomer decides he doesn't want to be part of the
holdup and he tells this to Earnest T. and Guber.
Question. Mr. ????? what crime or crimes can Gomer be convicted of?
Answer. Gomer can't be convicted of robbery because he did not go through with the robbery.
Gomer can be convicted of conspiracy because he did in fact make an agreement with the other
two to rob the bank.
E. Federal vs. State Crimes. Generally, "States" have jurisdiction of crimes committed within their borders.
In some instances, there are federal codes which will make that crime a federal one.
1. In addition, if criminal activity happens across state lines, it can also be considered a federal
crime.
IV. ELEMENTS OF CRIMINAL LIABILITY. There are two elements which are necessary for the completion of a
criminal act:
A. Performance of a Prohibited Act. The first is the performance of a prohibited act. Please note, an act
must actually be completed. Mere thoughts of an act is not enough.
1. The text also states that in some instances, the omission of act will be a crime.
Example. Assume that Guber's truck runs Howard off the road. Guber comes over and finds
Howard seriously injured. Guber looks at Howard and then leaves. Howard subsequently dies.
Answer. Guber had a duty to help Howard since he caused the accident. His lack of help is
criminal.
B. State of Mind or Intent. The second element is "there must be a wrongful mental state." This merely
means that the person must intend the act. Without intent, there is no crime.
V. CRIMES AFFECTING BUSINESS. The next section crimes affecting business.
A. Introduction. What does all of the crimes listed on Pages 160-163 have in common.
Answer. The deal the taking or destroying of property (which also includes money).
B. Forgery. Let's start with "forgery." Forgery consists of making or altering of a false writing with
intent to defraud.
1. Common Form of Forgery. The most common form of forgery is where one person signs and
cashes a check of another.
2. Other Forms of Forgery. The text also list other forms of forgery including: (1) changing
trademarks, (2) falsifying public records, (3) counterfeiting, and (4) altering legal documents.
C. Robbery, Burglary and Larceny. Robbery, Burglary and Larceny are similar in that they all involve the
taking of property. But there are some differences.
1. Larceny. Larceny consists of a taking or carrying away of personal property of another. Force
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or intimidation is not used in a larceny.
2. Robbery. Robbery consists of (1) a taking, (2) of personal property of another, (3) from the
other's person, (4) by force or intimidation, (5) with the intent to permanently deprive him of it.
a. Robbery is a Physical Form of Larceny. Robbery is thus a physical form of larceny
because in order for a robbery to take place there must be some force or intimidation.
b. Example 1. Earnest T. Bass walks up behind Floyd and takes his wallet out of his pants.
Is this larceny or robbery?
Answer. This is larceny because no force was used.
c. Example 2. Let's say Earnest T. Bass walks up to Aunt Bee and says give me $10 in a
very rough tone. Is this larceny, robbery or what?
Answer. It depends. If the court finds that Earnest T. was just asking for a hand
out, it is not robbery. But if they find that there was substantial intimidation and
Earnest T meant to intimidate Aunt Bee into giving him the money, then it is
robbery.
3. Burglary. Let's look at burglary. Burglary is the breaking and entering of a dwelling house of
another at night with the intent to commit a felony.
a. Be careful that the intent to commit a felony is present.
b. Example. Otis Campbell is drunk and mistakes Howard's house for his. Since Otis lost
his keys, he crawls in through the window. The next morning Otis discovers this is not
his how, but he see a couple of bottles full of liquor and takes them. Is this burglary?
Answer. NO this is not burglary because when Otis entered the house he did not intend
to commit a felony.
Question. this larceny.
Answer. Yes, this is larceny because Otis carried away personal property of
Howard's. NOTE, some may say Otis has a defense of "necessity."
D. Obtaining Goods by False Pretenses. Obtaining Goods by False Pretenses consist of (1) obtaining title,
(2) to the property of another, (3) by an intentional false statement, (4) with intent to defraud. Statutes on
this crime vary from state to state.
E. Receiving Stolen Goods. First and foremost, receiving stolen goods is a "crime." The elements of
receiving stolen goods are (1) receiving possession and control, (2) of stolen personal property, (3)
known to be stolen by another, and (4) with intent to permanently deprive the true owner of possession.
F. Embezzlement. Embezzlement is the fraudulent conversion of property of another by a person in lawful
possession of that property.
1. Common Situation is Bank Embezzlement. A large amount of companies face this problem. At
my last job, an individual who was responsible for petty started skimming money off the top.
Through regular audits she was caught and fired.
2. Distinguish between Embezzlement and Larceny. Embezzlement is not larceny because, as the
text states, to commit embezzlement the wrongdoer must first have lawful possession of the
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property. G. Arson. Arson is defined as the malicious burning of a building or some structure owned by another. In a
business context, arson usually arises when the owner of the structure wants the insurance proceed and
he hires someone to torch the building.
VI. WHITE-COLLAR CRIMES.
A. Introduction. This is where the "big bucks" are. White collar crimes are nonviolent acts by businesses or
individual used to obtained a personal or business advantage.
B. Bribery. The first type of white-collar crime is "bribery." Bribes consist of corrupt payment or receipt
of anything of value in return for official action.
1. Foreign Corrupt Practices Act. In 1977, Congress passed the Foreign Corrupt Practices Act.
The act (1) prohibited bribery of foreign official by US companies and (2) the act required
companies to keep "detailed" records that properly reflect the companies financial activities.
a. Violation of the act may result in large fines or imprisonment.
2. You can also be convicted of bribery of public official and giving or receiving "kickbacks".
C. Bankruptcy Fraud.
1. Introduction. This is one of the fastest growing forms of legal expertise. Bankruptcy filings in
North Carolina have increased more than 5 times in the last 10 years.
2. Requirements to File. Certain formalities must be followed in order to file for bankruptcy.
a. The debtor must disclose all assets.
b. The assets are taken into possession by a trustee.
c. The assets are distributed by the trustee based on some predetermined process.
3. Common Forms of Bankruptcy Fraud. Some of the more common forms of bankruptcy fraud are
listed in the text.
a. False Claims of Creditors. The first kind is where a creditor files a false claim to assets
held by the trustee.
b. Transfer of Property. The second situation is where a debtor transfers his property to a
third party prior to filing for bankruptcy. If this was allowed, the debtor would file for
bankruptcy but would have no assets.
c. Scam Bankruptcy. The third and final category is "scam bankruptcies." This is where a
bankruptcy is planned in advance. The typical situation is where a business obtains
merchandise on credit, sells the goods and then skips town.
E. Corporate Crimes. Corporate Crimes are crimes against the corporation. Since the corporation is not a
real person, usually only fines may be assessed. Generally, a natural person within the corporation may
be convicted of crimes which the corporation can't be (e.g. perjury, bribery, etc.)
VII. DEFENSES TO CRIMES. The law recognizes certain conditions that will relieve a defendant of criminal
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liability. The conditions are called "defenses." Some of the more common defenses are listed in your text.
A. Infancy. The first defense is "infancy." Most states still retain the common law approach to the infancy
defense. Under the common law:
1. A child under 7 years of age was absolutely presumed not to have criminal capacity.
2. A child between the ages of 7 and 13 was presumed not to be able to commit a criminal act. The
state could attack this presumption by demonstrating that the child understood the nature of his
act.
3. A child 14 or older is treated like an adult.
B. Intoxication. Intoxication may occur from alcohol or drugs. There are two kinds:
1. Involuntary Intoxication. Involuntary intoxication occurs when a person is physically forced to
drink or take alcohol or drugs or when drugs are taken under medical advice.
a
. Complete Defense. Involuntary intoxication may be a complete defense if its effect was
to make a person either (1) incapable of understanding that the act committed was wrong
or (2) incapable of obeying the law. IN OTHER WORDS, THE PERSON MUST
NOT KNOW RIGHT FROM WRONG.
b. Burrows v. State. Burrows, a teenager was traveling in the Arizona desert and got a ride
with Martin. Martin was drinking and told Burrows to drink or he would put him out of
the car. Burrows had never tasted alcohol before, BUT he drank because he had no
money and feared being left in the desert. Burrows became drunk and shot and killed
Martin. Burrows did not realized what he had done until after he had killed Martin.
Burrows was charged with "MURDER."
Holding. The court held Burrows was under duress when he drank the alcohol, therefore
his intoxication was involuntary. The court said Burrows committed the act when he did
not know right from wrong, therefore he can not be convicted of murder.
2. Voluntary Intoxication. Voluntary intoxication can be used ONLY for what is called specific
intent crimes such as murder, larceny, etc. It is not a defense to recklessness or negligence.
C. INSANITY. A defendant cannot be convicted if, at the time of the crime, he was so impaired by mental
illness or defect as to be insane within the meaning of the law.
1. What is Insanity. Over the years, the courts have struggled with the proper definition of insanity,
and numerous tests have been developed.
2. There is a General Presumption of Sanity on the part of the Defendant. In most jurisdictions,
there is a general presumption of sanity which the defendant must initially challenge.
3. Three Primary Tests. The text states the 3 major test which are used in deciding whether
someone is insane. (1) Model Penal Code, (2) M'Naghten test, and (3) the Durham Test.
a. Common Elements. The common elements seem to be (1) there must be a mental
defect or illness and (2) because of the defect or illness, the defendant can't tell right
from wrong.
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E. Mistake.
1. General Rule on Mistake of Law. Generally, ignorance of the law will not keep you out of jail.
This rule has been relaxed in some jurisdiction to allow mistake of law as a defense if defendant
shows either:
a. The law was not published or reasonably made know to the public OR
b. the person relied on an official statement of law that was in error. (e.g. judicial opinion,
administrative order, etc.)
2. Rule for Mistake of Fact. The wrong is quite different for a mistake in fact. A mistake in fact is
generally a good defense. There are 3 requirements which are not listed in your text. You
should know these:
a. The mistake is honestly believed:
b. The mistake is based upon reasonable grounds; and
c. The conduct of the defendant would have been lawful if the facts had been as believed
by the defendant.
F. Consent. Consent of the other party can be a defense in a criminal action, depending on the nature of the
crime.
1. For example a person can't consent to murder, prostitution or drug use.
2. Just note that there is a fine line with consent. For example if a woman consents to a kiss and is
raped, the man can not defend himself on the grounds of consent.
G. Duress. Compelled consent is no consent at all. This typically deals with "duress." Duress exists when
the wrongful threat of one person induces another person to perform an act that he would not otherwise
have performed.
1. Requirements for Duress. In order to find duress, text lists the following requirements:
a. The threat must be of serious bodily harm or death.
b. The harm that is threatened must be greater than the harm that will be caused by
the crime.
c. The threat must be immediate and inescapable and
d. The people who plead duress as a defense must have been involved in the situation
through no fault of their own.
H. Justifiable Use of Force. What about self defense. This is the most commonly used defense.
1. Distinguish between "use of deadly force" and "use of nondeadly force.". The first thing we
must do is distinguish between deadly force and nondeadly force.
a. Deadly Force. Deadly force in most jurisdictions is permitted to prevent a crime only if
the crime is a dangerous felony.
(1) Dangerous Felonies. Dangerous felonies are those which offer some risk of
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serious bodily harm such as murder, arson, burglary, rape and kidnaping.
b. Nondeadly Force. Nondeadly force is permitted in all circumstances if the person has a
reasonable belief that such force is necessary.
I. Entrapment. The general rule for entrapment is if a law enforcement officer entraps a person into
committing an illegal act, the person cannot be convicted of the offense.
A. Intent of the Defense. The defense is not intended to prevent the government from setting a trap;
it is intended to prevent them from pushing an individual into it.
B. KEY QUESTION. The key question is whether a person was going to commit the crime anyway
or whether the government's actions pushed him into committing the crime.
J. Statute of Limitations. Another word for statute of limitation is "time bar." This primarily deals with
whether the time limit has run as to when this crime may be brought.
1. Time Limit Varies From State to state. Time limits vary from state to state. Felonies usually
have longer statute of limitations than misdemeanors and there is no time limitation on
"murder."
K. Immunity. The last defense we will cover is "immunity." At times, the government negotiate with
defendants. In return for information, the government may agree to prosecute the defendant for a lesser
crime or drop the charges all together.
1. Can't Refuse to Testify After Immunity is Given. Once immunity is given, a person cannot
refuse to testify on 5th Amendment grounds.
VI. CRIMINAL PROCEDURE.
A. Introduction. In theory, under the law a person is innocent until proven guilty. For an individual to be
convicted of a crime, the government must prove guilt beyond a reasonable.
B. Constitutional Safeguards. An alleged criminal must be accorded "due process of law" regardless of how
serious the crime is. Constitutional safeguards apply to federal as well as state courts. The text list some
of the more common safeguards including:
1. Fourth Amendment protection from unreasonable searches and seizures.
2. Fourth Amendment probable cause requirement for issuance of a warrant for search or arrest.
3. fifth Amendment requirement that no one can be deprived of "life, liberty, or property without
due process of law."
4. Fifth Amendment protection against being tried for the same crime twice (called "double
jeopardy.")
5. Sixth Amendment right to speedy trial, trial by jury, a public trial, the right to confront witnesses,
and the right to a lawyer at various stages in some proceedings.
6. Eight Amendment prohibition against excessive bail.
C. Criminal Process. There are 3 primary and broad stages to the criminal process. They are arrest,
indictment, and trial.
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1. Arrest. Let's look at arrest first.
a. What is an "Arrest.?" An arrest occurs when the police take a person into custody
against her will for purposes of criminal prosecution or interrogation.
b. General Rule. The general rule is that in order for an arrest warrant to be issued there
must be "probable cause" that the person committed the crime.
(1) What is "Probable Cause?" Probable cause is defined as a substantial likelihood
that the individual committed the crime.
c. Sometimes Warrant are not Required. In certain situations warrants are not required but
there always must be probable cause.
2. Indictment. The next stage is the "indictment." First of all, you can't have a trial until you have
been charged with a specific crime.
a. Grand Jury or Magistrate. If the grand jury issues the charge, it is called an indictment.
Otherwise it is issued by the magistrate (and is called an "information.")
b. Charge must be based on Sufficient Evidence. Before a charge can be issued, the grand
jury or the magistrate must determine that there is sufficient evidence to justify bringing
the individual to trial.
3. Trial. The last stage is the "trial stage." Although all stages are critical, this is by far the most
important. Mr. ???? why would this be the most important.
Answer. This is the stage in which your guilt or innocence is determine. After this
stage, the court will either let you go or tell the bailiff to take you back to prison.
a. Burden of Proof is on Prosecution. At the trial stage, the burden of proof is on the
prosecution. This means that the defendant does not have to prove he is innocent. THE
PROSECUTION MUST PROVE HE IS GUILTY.
(1) Proof Beyond a Reasonable Doubt. The prosecution's proof must be beyond a
reasonable doubt. This means that the prosecution must show that the
defendant's guilt is clear and unquestionable.