Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Basic Criminal Law – The U.S. Constitution, Procedure, and Crimes By Anniken U. Davenport CHAPTER 7: CRIMES AGAINST THE STATE

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Chapter Objectives  Understand the significance of perjury  Explain the essential elements of Obstruction of Justice  Understand the different types of contempt  Know what constitutes bribery  Explain the ways that the government seeks to control corrupt organizations  Know the steps in the impeachment process  Appreciate the special problems offenses against the state pose for society and the rule of law

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Perjury  Definition - “giving false testimony in a judicial proceeding or an administrative proceeding, lying under oath as to a material fact, swearing to the truth of anything one knows or believes to be false”

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Section 1621 Perjury  Definition – general giving of false testimony in any government proceeding  conviction is dependent upon the two witness rule – at least two pieces of evidence must exist, including testimony of witnesses or physical evidence  recantation – taking back the lie will not save a person from conviction  prosecution must determine which statement was a lie when two statements are contradictory

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Section 1623 Perjury  Definition – false testimony given in court or before a grand jury  conviction requires proof beyond a reasonable doubt  a person can recant the false testimony to avoid conviction, as long as the false testimony does not substantially effect the proceeding  prosecution need not prove which statement was false; the existence of two contradictory statements is sufficient

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Subornation of Perjury  Definition – convincing or seeking to convince another person to commit perjury

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Elements of Perjury  oath – must be administered by a legally authorized person  intent – must be aware that what is being said is false and must intend to mislead the listener  falsity – must be proven to be false beyond a reasonable doubt; two contradictory statements are sufficient to prove the falsity of at least one of them for Section 1623 Perjury  materiality – the lie must be of some consequence to the case

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Defenses to Perjury  recantation  inadequacy of counsel  double jeopardy  the perjury trap  fifth amendment

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Obstruction of Justice Definition – “the crime of impeding or hindering the administration of justice in any way ”

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Elements of Obstruction of Justice there is a pending judicial proceeding, or there was a potential for a judicial proceeding had the obstruction not taken place the defendant knew of the proceeding, or the possibility of a proceeding the defendant acted corruptly with the specific intent to obstruct or interfere with the proceeding or due administration of justice

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Types of Obstruction (federal law) U.S.C. § Influencing Or Injuring Officer Or Juror Generally U.S.C. § Influencing Juror By Writing U.S.C. § Obstruction Of Proceedings Before Departments, Agencies U.S.C. § Theft Or Alteration Of Record Or Process U.S.C. § Obstruction Of Court Orders U.S.C. § Obstruction Of Criminal Investigations U.S.C. § Obstruction Of State Or Local Law Enforcement U.S.C. § Tampering With A Witness, Victim, Or An Informant U.S.C. § Retaliating Against A Witness, Victim, Or An Informant U.S.C. § Obstruction Of Federal Audit U.S.C. § Obstructing Examination Of Financial Institution U.S.C. § Obstruction Of Criminal Investigations Of Health Care Offenses

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved CIVIL DISOBEDIENCE, TRESPASS, AND PROTEST Civil Disobedience – Used to show that a particular law or practice was unconscionable and should be repealed. Is criminal behavior designed to cast law enforcement in a bad light. At a minimum involves trespass, in some cases vandalism as well. Designed to be nonviolent, but has escalated to violence on several occasions.

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Contempt Definition – “Conduct that brings the authority and administration of the law into disrespect or that embarrasses or obstruct the court’s discharge of its duties”

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Federal Contempt Laws Federal Law - A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; Misbehavior of any of its officers in their official transactions; Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Types of Contempt Civil Contempt – occurs with a finding by the presiding judge that an individual is in contempt of court; punishable by fine and sometimes time in prison, a way to force compliance to the order Criminal Contempt – occurs with the finding by the presiding judge that an individual is in contempt of court and also punishable by fine or jail; a way to punish for a separate crime, obeying the order will not negate the punishment

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Defenses to Contempt absence of warning by court attorney- client privilege double jeopardy reporter’s privilege

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Bribery Definition – “the crime of giving something of value with the intention of influencing the action of a public official”

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Elements of Bribery the recipient or target of the bribe must be a governmental official a bribe recipient can be any government official ranging from a congressman to a clerk issuing permits or licenses the recipient does not even have to have the actual authority to perform the requested action

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Elements of Bribery (cont’d) a bribe in the form of money, goods, favors, or something of value was offered or given the goods exchanged for the bribe do not have to go to the government official; they can go to a person named by the government official the goods do not have to be accepted, the mere offer of goods is sufficient for the crime of bribery to have taken place

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Elements of Bribery (cont’d) the bribe was meant to induce an action or inaction the action does not have to be illegal, but must simply have been influenced by the bribe the recipient does not actually have to perform the act requested

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Defense to Bribery  entrapment – this is hard to prove  the defendant must demonstrate that he/she was not predisposed to paying a bribe under normal circumstances  other ways of getting around the government official must have been absent

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Corrupt Organizations Racketeering Influenced and Corrupt Organizations Act (RICO) – part of the Organized Crime Control Act passed in 1970, intended to punish crimes that were run through legitimate businesses or businesses that merely appeared to be legitimate

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved RICO  Under RICO, it is a federal crime to acquire or maintain an interest in, use income from, or conduct or participate in the affairs of an “enterprise” through a pattern of “racketeering activity.” an enterprise can be  Corporation  Partnership  sole proprietorship  any business or organization  the government

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved RICO The enterprise must commit at least two racketeering acts within a 10-year period, such as:  Bribery  Embezzlement  Gambling  Arson  counterfeiting money, recordings, copyrighted materials, and computer programs  trafficking in contraband cigarettes  harboring illegal aliens

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved RICO  punishment can including fines, jail time, and seizure of property obtained with the illegal proceeds

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Impeachment Definition – an indictment of a federal official charging him/her with “treason, bribery, and high crimes and misdemeanors” with the purpose of removing the person from office

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Impeachment Procedure  Because the process for impeachment is not recorded in the Constitution or in Code, the rules and the procedure are determined by Congress on an ad hoc basis.  Impeachment articles are voted on in the House of Representatives.  A trial is held by the Senate, which requires a two-thirds super majority for conviction.  Congress has never established a standard burden of proof.  The charge of “high crimes and misdemeanors” is also ambiguous.  It is possible to be impeached and still face criminal charges in court.

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Impeachment  It is intentionally a difficult process to impeach someone because the Framers believed that it should be extremely difficult to remove a person from office if the people voted to place him/her in that position.  Impeachment is meant to punish a civic official for selling their office, essentially, betraying the confidence of voters.