1 Book Cover Here Copyright © 2010, Elsevier Inc. All rights Reserved Chapter 11 Offenses Against Justice Administration Criminal Law Ninth Edition

2 Copyright © 2010, Elsevier Inc. All rights Reserved Introduction Some of the common law crimes that developed over the years, primarily through judicial action to protect the public have disappeared, while new offenses have been added as new or larger agencies have been created. 11.1

3 Perjury and Related Offenses Common Law Perjury was limited to the false oath in a judicial proceeding. False swearing is a separate and indictable offense. The offense of perjury was defined as a willful assertion as to a matter of fact, opinion, belief, or knowledge made by a witness in a judicial proceeding as a part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether in open court, in an affidavit, or otherwise, such assertion being known to such witness to be false, and being intended by him to mislead the court, jury, or person holding the proceedings. Copyright © 2010, Elsevier Inc. All rights Reserved 11.2

4 Perjury and Related Offenses Model Penal Code A person is guilty of perjury, a felony of the third degree, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he does not believe it to be true. A perjured statement that is not material to the judicial proceeding is a violation of the false swearing section. Also falsifications that do not occur in an official proceeding, but are intended to mislead a public official in the performance of his official function. Copyright © 2010, Elsevier Inc. All rights Reserved 11.2

5 Perjury and Related Offenses State Statutes, Codes, and Cases A number of states have adopted the Model Penal Code in substance. In addition, some states list the specific types of proceedings to which perjury sanctions may be applied. For a conviction the state must prove the defendant: Made an intentional false statement That was material In a judicial proceeding under oath For the purpose of misleading the court Copyright © 2010, Elsevier Inc. All rights Reserved 11.2

6 Perjury and Related Offenses State Statutes, Codes, and Cases Other Issues Some state statutes include a corroboration or “two witness” rule. False Swearing In some states, a separate crime of false swearing is included in the statutes. Generally, these statutes use somewhat the same language that is used in perjury statutes, but do not require that the false statements be made in a judicial proceeding, may not require materiality, and in some instances, do not require intent to mislead. Copyright © 2010, Elsevier Inc. All rights Reserved 11.2

7 Perjury and Related Offenses Subornation of Perjury Is the procuring of one person by another to commit the crime of perjury. The crime has two essential elements: One person must have willfully procured another to commit perjury, and The second person must have, in fact, committed the offense. Copyright © 2010, Elsevier Inc. All rights Reserved 11.2

8 Perjury and Related Offenses Summary While common law restricted the definition of perjury to only false statements under oath in a judicial proceeding. Modern statutes have expanded the definition of perjury or created “false swearing” to cover other forms of false statements made under oath or after swearing the truthfulness of the statement. Copyright © 2010, Elsevier Inc. All rights Reserved 11.2

9 Perjury and Related Offenses Perjury A/R False statement (testimony), under oath, about a material element, in a judicial proceeding M/R Specific intent False Swearing A/R False statement (writing), after swearing M/R General intent (to lie) Copyright © 2010, Elsevier Inc. All rights Reserved 11.2

10 Perjury and Related Offenses Subornation of perjury A/R Entice, encourage, reward another to commit perjury and perjury did occur M/R Specific intent Copyright © 2010, Elsevier Inc. All rights Reserved 11.2

11 Bribery and Related Offenses Common Law Bribery is the receiving by a judge or other officer connected with the administration of justice, of “any undue reward to influence his behavior in his office.” Early common law only identified as criminal the public official who accepted the bribe. Elements Receiving or soliciting A thing of value With intent to influence the recipient’s action The recipient is a public official Copyright © 2010, Elsevier Inc. All rights Reserved 11.3

12 Bribery and Related Offenses Model Penal Code Follows the more recent statutory provisions in reaching both the person who offers, gives, or agrees to give a bribe in an official or political matter and the public servant or other covered individual who solicits, accepts, or agrees to accept a bribe. It applies to full-time government employees, plus consultants to government, bribery of voters and political party officials, and bribery of anyone who exercises official discretion in a judicial or administrative proceeding. Copyright © 2010, Elsevier Inc. All rights Reserved 11.3

13 Bribery and Related Offenses State Statutes, Codes, and Cases Many recently enacted state bribery statutes include most of the language of the Model Penal Code. Some require specific intent. Others can be interpreted to require that the benefit be offered, or solicited upon an agreement or understanding that a specific official act will be influenced. Statutes are often categorized into sections that related to bribery in specific situations and degrees of bribe receiving. Copyright © 2010, Elsevier Inc. All rights Reserved 11.3

14 Bribery and Related Offenses Conflict-of-Interest Statutes Commonwealth v. Heistand The defendant was charged with bribery, commercial bribery, and conflict of interest. The defendant’s roofing company had a contract with the school district and that the defendant had an “understanding” with the facilities manager that the defendant’s payment of the manager’s country club membership dues would influence the manager’s judgment. The defendant’s company was awarded a contract after the offer was made and a second contract after the dues were paid. The defendant was convicted of the conflict of interest charge. Copyright © 2010, Elsevier Inc. All rights Reserved 11.3

15 Bribery and Related Offenses Summary In general, bribery can be committed by a person who offers or gives as well as the person who accepts or solicits. The receiver must be a public official. There must be proof that the thing of value was given or accepted in return for a specific act related to the public official’s performance of public duties. If this element cannot be proven, it may be that a conflict of interest crime has been committed. Copyright © 2010, Elsevier Inc. All rights Reserved 11.3

16 Bribery and Related Offenses The crime of conflict of interest punishes the mere giving or taking of items of value that may influence a public official’s judgment and there is no requirement to prove an agreement regarding a specific act of the public servant in return for compensation. Copyright © 2010, Elsevier Inc. All rights Reserved 11.3

17 Bribery and Related Offenses Bribery A/R Offer, give, solicit, receive, a thing of value, to (or by) a public official, to influence, performance of public duties M/R Intent to influence (or intent to receive in return for being influenced) Conflict of Interest A/R Offer, give, solicit, receive; a thing of value; to (or by) a public official; that is against statutory limits M/R General intent, knowing Copyright © 2010, Elsevier Inc. All rights Reserved 11.3

18 Obstructing Justice Common Law Early definitions To obstruct justice is to interpose obstacles or impediments, or to hinder, impede, or in any matter interrupt or prevent the administration of justice. The phrase obstructing justice means impeding or obstructing those who seek justice in a court, or those who have duties or powers of administering justice therein. The state has the inherent power to punish for obstruction of justice if it is found that a person acted in such a way as to play on human frailty and to defect and to deter the court from performing its duty. Copyright © 2010, Elsevier Inc. All rights Reserved 11.4

19 Obstructing Justice Model Penal Code Punishes anyone who obstructs, impairs, or perverts the administration of law, or other governmental function. It is not limited to the administration of law or other governmental function. The prosecution must also introduce evidence to prove that force, violence, physical interference or obstacle, breach of official duty, or other unlawful act was involved in obstructing the administration of law. Copyright © 2010, Elsevier Inc. All rights Reserved 11.4

20 Obstructing Justice State Statutes, Codes, and Cases Many have followed the Model Penal Code and consolidated obstruction of government functions into one offense. Charges may apply to those who hide or destroy evidence, lie on official reports, threaten jurors or prosecutors, delay or subvert the course of an official investigation, hide an offender and/or help the offender escape, or lie to investigating officers in such a way that it seriously hampers the investigation. Copyright © 2010, Elsevier Inc. All rights Reserved 11.4

21 Obstructing Justice The elements of obstruction will vary from state to state, but, in general, they include: Intentionally Impede, prevent, obstruct, delay A public official from performing an official duty in the administration of justice Copyright © 2010, Elsevier Inc. All rights Reserved 11.4

22 Obstructing Justice Summary Obstruction of justice charge is a catchall that can cover a multitude of behaviors, including interfering with an arrest, hiding evidence, or malfeasance of office on the part of a justice official. Copyright © 2010, Elsevier Inc. All rights Reserved 11.4

23 Obstructing Justice Obstruction of Justice A/R Impede, prevent, delay, obstruct; justice official; from performing official functions in the administration of justice M/R Specific intent (intend to do the act, and intend that it obstruct justice) Copyright © 2010, Elsevier Inc. All rights Reserved 11.4

24 Escape Common Law Broadly defined as the voluntary departure of a person, without force, from the lawful custody of an officer or from any place where he is lawfully confined. One who has been taken into custody of the law by arrest or surrender and remains in legal custody and then departs unlawfully is guilty of escape. The fact that the escape occurs as a result of the negligence of a jailer in leaving a door open is not a defense. The crime of escape included the situation in which an officer voluntarily allows a prisoner to escape. Copyright © 2010, Elsevier Inc. All rights Reserved 11.5

25 Escape Common Law The officer could be held criminally liable if he unlawfully permitted the prisoner to escape. An escape was not justified or excused even if a prisoner was wrongfully held in custody and could have been released if the proper legal steps were taken. The elements of common law escape are: the person must be in legal custody, and departure from the area of confinement. Copyright © 2010, Elsevier Inc. All rights Reserved 11.5

26 Escape Model Penal Code Includes failure to return following leave from a correctional institution granted for a specific purpose. Official detention is clearly defined to include arrest and detention for law enforcement purposes. Penalty is provided for a public official who permits or facilitates the escape. The punishment assigned to the offense of escape takes into consideration the crime charged and the force used in making the escape. Copyright © 2010, Elsevier Inc. All rights Reserved 11.5

27 Escape State Statutes, Codes, and Cases Some states recognize a single grade of escape with no aggravating or mitigating factors. Other states include distinct grading levels depending upon the use of force, the severity of the escapee’s original crime, and the escapee’s status. The general elements of state statutes are: Voluntary departure From custody With intent to not return to custody Copyright © 2010, Elsevier Inc. All rights Reserved 11.5

28 Escape Summary Escape must begin with custody. Once custody is established, then voluntary departure can constitute an escape, even if the person is not in jail or prison. Inmates of halfway houses and work-release facilities commit the crime of escape when they do not return at the expected time. Individuals in police “custody” may be charged with escape, but not if they are merely being detained for investigative purposes. Copyright © 2010, Elsevier Inc. All rights Reserved 11.5

29 Escape A/R Voluntary departure, from custody, with intent not to return M/R Knowing (one is in custody), intent (not to return) Copyright © 2010, Elsevier Inc. All rights Reserved 11.5

30 Resisting Arrest Common Law If the arrest was legal and there was resistance, the offense of resisting arrest was complete. What amounted to resistance depended on the facts of the situation. An individual had a right to use reasonable resistance to prevent being arrested illegally. If the officer did not disclose his authority and the accused did not know that he was an officer, the accused had the right to resist with whatever force was necessary. Copyright © 2010, Elsevier Inc. All rights Reserved 11.6

31 Resisting Arrest Model Penal Code Concerned with resistance to arrest where there is a substantial risk of bodily injury to a public servant or anyone else, or when means are employed that justify or require substantial force to overcome the resistance. Exempted from liability is one who nonviolently refuses to submit to arrest and such minor forms of resistance as running from a police officer or trying to shake free from his or her grasp. Resisting arrest is a misdemeanor regardless of the charge against the person who resist arrest. Copyright © 2010, Elsevier Inc. All rights Reserved 11.6

32 Resisting Arrest State Statutes, Codes, and Cases The states have differed, especially regarding resistance to an unlawful arrest. Some have been persuaded by the argument that the officer should be protected even if the arrest is unlawful and that the remedy for the person who is unlawfully arrested in a civil action against the officer. When police use excessive force in effecting an arrest, some states allow the citizen to defend themselves against the arrest. Copyright © 2010, Elsevier Inc. All rights Reserved 11.6

33 Resisting Arrest State Statutes, Codes, and Cases The elements of resisting arrest, generally are as follows: Resisting (creating risk of bodily injury and/or requiring substantial force to overcome) A (lawful) arrest Copyright © 2010, Elsevier Inc. All rights Reserved 11.6

34 Resisting Arrest Summary Some states cover resisting arrest in a general obstruction of justice statute. Others have a separate statute that defines and penalizes resisting arrest. These statutes exempt nonviolent means of resistance, but punish those who create a substantial risk of harm by fighting with the police officer or otherwise creating a situation in which the police officer must use substantial force to overcome the resistance. Some states identify the lawfulness of the arrest as an element of the crime. Copyright © 2010, Elsevier Inc. All rights Reserved 11.6

35 Resisting Arrest A/R Resisting, a (lawful) arrest M/R Knowing (one is being placed under arrest), intentional (resistance) Copyright © 2010, Elsevier Inc. All rights Reserved 11.6

36 Evading Arrest Evading is the third and least serious crime in the three related crimes of escape, resisting, and evading. Common Law No record of this crime seems to exist under the common law. Copyright © 2010, Elsevier Inc. All rights Reserved 11.7

37 Evading Arrest Model Penal Code Has a section titled “Hindering Apprehension or Prosecution” that defines as criminal those who assist another to escape or avoid capture by law enforcement. State Statutes, Codes, and Cases Not all states have a separate evading arrest statutes. In some states the behavior is covered under a section of the resisting statute and in other it is covered under a general obstruction of justice statute. Copyright © 2010, Elsevier Inc. All rights Reserved 11.7

38 Evading Arrest A/R Avoiding or fleeing, from arrest, without violence M/R Knowing (that arrest is attempted), intentional (flight) Copyright © 2010, Elsevier Inc. All rights Reserved 11.7

39 Other Offenses Against Justice Administration Failure to aid a law enforcement officer False reports to law enforcement authorities Tampering with witnesses Tampering with evidence Copyright © 2010, Elsevier Inc. All rights Reserved 11.8