davenport: basic criminal law, 2 nd ed.© 2009 pearson education, upper saddle river, nj 07458. all...

Davenport: Basic Criminal Law, 2nd ed. © 2009 Pearson Education, Upper Saddle River, NJ 07458.All rights reserved

Basic Criminal Law – The U.S. Constitution, Procedure, and CrimesBy Anniken U. Davenport

CHAPTER 7: CRIMES AGAINST THE STATE


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


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”


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


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


Subornation of Perjury Definition – convincing or seeking

to convince another person to commit perjury


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


Defenses to Perjury recantation inadequacy of counsel double jeopardy the perjury trap fifth amendment


Obstruction of Justice

Definition – “the crime of impeding or hindering the administration of justice in any way”


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


Types of Obstruction (federal law)

1. 18 U.S.C. § 1503. Influencing Or Injuring Officer Or Juror Generally 2. 18 U.S.C. § 1504. Influencing Juror By Writing

3. 18 U.S.C. § 1505. Obstruction Of Proceedings Before Departments, Agencies

4. 18 U.S.C. § 1506. Theft Or Alteration Of Record Or Process

5. 18 U.S.C. § 1509. Obstruction Of Court Orders

6. 18 U.S.C. § 1510. Obstruction Of Criminal Investigations

7. 18 U.S.C. § 1511. Obstruction Of State Or Local Law Enforcement

8. 18 U.S.C. § 1512. Tampering With A Witness, Victim, Or An Informant

9. 18 U.S.C. § 1513. Retaliating Against A Witness, Victim, Or An Informant

10. 18 U.S.C. § 1516. Obstruction Of Federal Audit

11. 18 U.S.C. § 1517. Obstructing Examination Of Financial Institution

12. 18 U.S.C. § 1518. Obstruction Of Criminal Investigations Of Health Care Offenses


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.


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”


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.


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


Defenses to Contempt

absence of warning by court attorney- client privilege double jeopardy reporter’s privilege


Bribery Definition – “the crime of giving

something of value with the intention of influencing the action of a public official”


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


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


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


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


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


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


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


RICO punishment can including fines, jail

time, and seizure of property obtained with the illegal proceeds


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


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.


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.

davenport: basic criminal law, 2 nd ed.© 2009 pearson education, upper saddle river, nj 07458. all...

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