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? ―35Do 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? ―15One
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? ―16If a malicious
witness takes the stand to accuse a man of a crime, 17the 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. 18The judges must make a thorough investigation, and if the witness proves to be a liar,
giving false testimony against his brother, 19then do to him as he intended to do to his brother.
You must purge the evil from among you. 20The rest of the people will hear of this and be afraid,
and never again will such an evil thing be done among you. 21Show 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. ―38You have heard that it was said, 'Eye for eye, and tooth for tooth.'
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But I tell you, Do not resist an evil person. If someone strikes you on the right cheek, turn to him
the other also. 40And if someone wants to sue you and take your tunic, let him have your cloak as
well. 41If someone forces you to go one mile, go with him two miles. 42Give 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: ―18If 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, 19his father and mother shall take
hold of him and bring him to the elders at the gate of his town. 20They 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."
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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

59
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

61
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

68
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

69
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

70
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

71
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

74
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: “ 60Then
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?" 61But 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:

76
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?

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