White-collar Deviance and Trial Procedures
1. White-collar deviance is not restricted to just legally defined crimes, but includes many unethical acts, harmful activities, civil and regulatory violations, and the like. The term white-collar deviance or offenses is a more encompassing construct than “white-collar crime.”
2. Deviant acts are so categorized because they are harmful. Harm is a useful criterion because it may be objectively defined and measured, and need not be the subject of endless philosophical debate concerning values, or whether or not a harmful act is still harmful even if it has not been officially labeled as “a social problem” by the larger society.
3. There are three basic types of harm that will serve as our criteria for whit-collar deviance. These include:
a. Physical harm: physical injury, illness, and death
b. Financial harm: fraud, and various scams that are not legally defined as fraud but that nevertheless cause consumers and investors to be deprived of their funds without receiving the goods or services for which they contracted.
c. Moral harm: deviant behavior by elites (people who head government and corporate institutions) that encourages deviance, distrust, cynicism, or alienation among the rest of the population.
4. White-collar crime and deviance fall into two basic categories. First, many examples involve the largest and most wealthy global corporations and the most powerful branches of the American government. When such entities are the perpetrators, one is speaking of elite white-collar deviance. In general, elite white-collar deviance is more harmful because the actors involved have the most resources, and the consequences of their acts are more often national, international, or even global in scope. Non-elite white-collar deviance, involves businesses and governmental organizations whose actions impact more on a regional, state, or local level, and while the actions of such entities can still be devastating within their confines, they nevertheless are usually less consequential than acts of elite white-collar deviance.
4. White-collar offenders do not view themselves as criminals, and crime is not their predominant activity. This distinguishes white-collar offending from some other types of elite crime such as professional and organized crime (Hagan 1996). There is, however, over-whelming evidence that most white-collar wrongdoing is planned, and that those engaging in it know that it is illegal (Kappeler et al. 1997:142-4).
White-collar deviance: Planned illegal or unethical acts of deception committed by an individual or organization during the course of legitimate occupational activity by persons of high or respectable social status for personal or organizational gain that violates fiduciary responsibility or public trust (Helmkamp, Ball & Townsend 1996:iii)
Types of White-collar crime:
1. Crimes by persons operating on an individual ad hoc basis; ie. Income tax, credit card, or bankruptcy fraud.
2. Crimes in the course of their occupation by those operating inside business, government, or other establishments, in violation of their duty of loyalty and fidelity to employer or client; ie. Embezzlement, insider trading, commercial bribery, and kickbacks. [occupational crime]
3. Crimes incidental to and in furtherance of business operations, but not the central purpose of the business; ie. Antitrust violations, deceptive advertising, and commercial espionage. [corporate or organizational crime]
4. White-collar crime as a business, or as a central activity; ie. Professional crime including scams, con artist operations, land frauds, and phony charity and religious frauds.
Global White-collar Deviance:
ö Exporting dangerous pharmaceuticals that are banned for sale in advanced nations.
ö The dumping of imported toxic waste.
ö Alliances with global crime syndicates engaged in the $850 billion yearly global narcotics trade.
ö Global prostitution engaged in by vice-dealing corporations.
ö The international smuggling of the bodies (or parts thereof) of endangered species.
ö Government-provided foreign aid to nations that violate basic human rights.
ö Bribery and other forms of corruption taking place between international corporations and governments.
ö The illegal sales of weapons.
Depositions – oral or written testimony by a witness that may be used as evidence in trial
Defense of Lack of Mental Responsibility – the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts; the accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence
Defense Counsel Defendant
Beyond Reasonable doubt Preponderance of Evidence
Prosecutor – burden of proof Plaintiff – burden of proof
Custody Monetary settlement
Hypothetically, during the entire criminal court process the rights of the individual are protected at all times. These rights, determined by federal and state constitutional mandates, statutes, and case law form the foundation for protecting the accused. They include such basic concepts as the right to an attorney, the right to a jury trial, and the right to a speedy trial. Under the Fifth and Fourteenth Amendments of the US Constitution, defendants also have the right to due process and the right to be treated with fundamental fairness. Under the protective umbrella of due process are included the rights to be present at trial, to be notified of the charges, to have an opportunity to confront hostile witnesses, and to have favorable witnesses appear.
Court dockets are too crowded and funds too scarce to grant each defendant the full share of justice. Consequently, a system known as plea bargaining has developed: defendants are asked to plead guilty as charged in return for consideration of leniency or mercy.
After conviction and sentencing, the offender enters the correctional system. The most common correctional treatment, probation, is a legal disposition that allows the convicted offender to remain in the community, subject to conditions imposed by court under the supervision of a probation officer. This lets the offender continue to working and avoids the crippling effects of incarceration.
A person given a sentence involving incarceration ordinarily is confined to a correctional institution for a specified period. Jails, or houses of correction, hold offenders convicted of misdemeanors and those awaiting trail or involved in other proceedings, such as grand jury deliberations, arraignments, or preliminary hearings.
State and federally operated facilities that receive felony offenders sentenced by the criminal courts are called prisons or penitentiaries.
The last segment of the corrections system, parole, is a process whereby an inmate is selected for early release and serves the remainder of the sentence in the community under the supervision of a parole officer.
The Process of Justice:
The Trial Process:
ö Voir Dire – all persons are selected and questioned by both the prosecution and defense to determine their appropriateness to sit on the jury.
ö Prosecutor’s opening statement to the jury – describe what they will attempt to prove and the major facts of the case.
ö Defense attorney’s opening statement to the jury – begins to emphasize that any doubts about the guilt of the accused must be translated into an acquittal.
ö Prosecutor’s presentation of evidence and direct examination.
ö Defense attorney’s cross-examination.
ö Defense attorney’s presentation of evidence and direct examination.
ö Prosecutor’s cross-examination.
ö Defense attorney’s closing statements to the jury.
ö Prosecutor’s closing statements to the jury (summation).
ö Judge’s instructions to the jury on the law, evidence, and standards of proof.
ö Jury deliberation and voting.
ö Pronouncement of verdict.
ö Judicial sentencing.
CLASSIFICATION OF LAW
v Crimes and Torts – two broad categories of law are criminal and civil with civil law covering all law other than criminal law, including property law, contract law, and tort law.
o Tort is a civil action in which an individual asks to be compensated for personal harm, either physical or mental
o The standard of evidence for a finding is less in civil cases, where proof is a mere preponderance of the evidence as opposed to beyond a reasonable doubt in criminal cases
o Because some torts are similar to some criminal acts, a person can possibly be held both criminally and civilly liable for one action.
o Both criminal and civil law attempt to control people’s behavior by setting limits on what acts are permissible; and both accomplish this through state-imposed sanctions.
o The main purpose of criminal law is to give the state the power to protect the public from harm by punishing individuals whose actions threaten the social order; the main concern of tort law is to compensate victims for harm that others have inflicted upon them.
o In a criminal action, the state initiates the legal proceedings by bringing charges and prosecuting the violator; the state can impose punishment of imprisonment, probation, which is community supervision by the court; or a fine payable to the state.
o In a civil action, the injured party files the action and if the action is successful, the injured individual usually receives financial compensation for the harm done.
v Felonies and Misdemeanors – further classification of criminal law by the seriousness of the offense
o Felony – is a serious offense punishable by death or imprisonment for more than a year in a state prison
o Misdemeanor – a minor or petty crime punished by less than one year in a local county facility, a jail or house of correction
THE LEGAL DEFINITION OF A CRIME
To fulfill the legal definition of crime, all elements of a crime must be proven: the criminal act and the criminal intent
o The central issue is the voluntary action and whether the individual has control over his or her actions.
o The duty to act is a legal duty, not just a moral duty
o The relationship of parties based on status (parent/child; spouses)
o Imposition by statute
o Contractual relationship
o Most crimes require general intent, or an intent to commit the crime.
o Specific intent is an intent to accomplish a specific purpose as an element of the crime
o Transferred intent occurs when the original intent is transferred to the unintended victim.
o Negligence involves a person’s acting unreasonably under the circumstances resulting in harm.
o Constructive intent occurs when the intent that underlies an unintentional act results in harm to another with the finding of criminal liability
v Strict-liability crimes occur when the person accused is guilty simply by doing what the statute prohibits; intent does not enter the picture.
v Defendants of a crime must refute one or more elements of the crime of which they have been accused by:
o Arguing they were falsely accused and that the real culprit has yet to be identified.
o May claim that although they engaged in the criminal act of which they are accused, they lacked the intent needed to be found guilty of the crime.
o Excuses - excuse criminal actions by claiming he or she lacked the capacity to form sufficient intent to be held criminally responsible (insanity, intoxication, and ignorance)
o Another type of defense is justification – the individual admits committing the criminal act but maintains that the act was justified and that he or she should therefore not be held criminally liable. (justified under the circumstances – necessity, duress, self-defense, and entrapment)
v Ignorance or Mistake – ignorance of the law is no excuse; ignorance does not excuse evil intent; can be an excuse when there was no intent to violate the law and unknowingly did so (buying goods you did not know were stolen) or if the mistake is reasonable (some statutory rape)
v Insanity – a defense to criminal prosecution in which the defendant’s state of mind negates his or her criminal responsibility
o Insanity is a legal category in which psychiatric testimony is to prove a defendant legally sane.
o A person found to be legally insane at the time of trial is placed in the custody of state mental health authorities until diagnosed as sane.
o M’Naghten Rule is known as the right-wrong test; didn’t know what he was doing or didn’t know it was wrong.
o M’Naghten criticized due to confusion of terms “disease of the mind” and “ know the nature and quality of the act” having never been properly clarified; mental health professionals have pointed out that rule is unrealistic and narrow in that it does not cover situations in which people know right from wrong but cannot control their actions.
o Irresistible impulse test – could not control his conduct at the time of the crime; if jury finds a person acted under an irresistible impulse, the defendant would be placed in a mental health facility until considered capable of controlling his or her behavior.
o Substantial capacity test is essentially a combination of M’Naghten and Irresistible impulse requiring only a lack of substantial capacity to appreciate the wrongfulness of the conduct or to control it, which must be proven by the prosecution beyond a reasonable doubt
v Intoxication – which in legal terms is defined as the taking of alcohol or drugs, is not generally considered a defense
v Duress – defense to a crime when the defendant commits an illegal act because the defendant, or a third person, has been threatened by another with death or serious bodily harm if the act is not performed.
v Necessity- as a defense is applied in situations in which a person must break the law to avoid a greater evil caused by natural forces (storms, earthquakes, or illness) This defense is available only when committing the crime is the lesser of two evils.
v Self-Defense – involves a claim that the defendant’s actions were a justified response to the victim’s provocative behavior.
o Self-defense can be used to protect one’s person or property.
o An individual is justified in using force against another to protect himself or herself.
o Defendants must reasonably believe that they are in danger of death or great harm and that it is necessary for them to use force to protect themselves.
o The amount of force used must be no greater than that necessary to prevent personal harm.
v Entrapment – another defense that excuses a defendant from criminal liability.
o Defendant maintains that law enforcement officers induced him or her to commit a crime that the defendant would not have committed had it not been for trickery, persuasion, or fraud on the officers’ part
o Law enforcement officers plan a crime, implant the criminal idea in a person’s mind, and pressure that person into doing the act is different than an officer providing an opportunity for the crime to be committed and the defendant being willing and ready to do the act
v Exotic Defenses – based on preexisting conditions or syndromes with which their clients were afflicted