White-collar Deviance and Trial Procedures

 

 

Common Characteristics:

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

 

Criminal                                                                        Civil                                        

Attorney                                                                       Attorney                                  

Prosecutor                                                                    Plaintiff                                    

Defense Counsel                                                           Defendant                                

Judge                                                                           Judge                                      

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:

  1. Initial contact.  The initial contact an offender has with the justice system is usually with police.  Police officers usually react to a report of a crime.
  2. Investigation.  They investigate complaint of crime to gather sufficient facts or evidence to identify the perpetrator, justify an arrest, and bring the offender to trial.  Investigations may take a few minutes or may take years to complete and involve numerous investigators.
  3. Arrest.  An arrest occurs when the police take a person into custody for allegedly committing a criminal act.  An arrest is legal when all of the following conditions exist:  (a) the officer believes there is sufficient evidence (probable cause) that a crime is being or has been committed an that the suspect committed the crime; (b) the officer deprives the individual of freedom; and (c) the suspect believes that he or she is in the custody of a police officer and cannot voluntarily leave.  The police officer is not required to use the word arrest or any similar word to initiate an arrest; nor does the officer first have to bring the suspect to the police station.
  4. Custody.  After arrest, the suspect remains in police custody.  The person may be taken to the police station to be fingerprinted and photographed and to have personal information recorded (booking).  Witnesses may be brought in to view the suspect (in a lineup) and further evidence may be gathered on the case.  Suspects may be interrogated by police officers to get their side of the story, they may be asked to sign a confession of guilt, or they may be asked to identify others involved in the crime.  The law allows suspects to have their lawyers present when police conduct in-custody interrogations.
  5. Complaint/charging.  After police turn the evidence in a case over to the prosecutor, who represents the state at any criminal proceedings, a decision will be made whether to file a complaint, information, or bill of indictment with the court having jurisdiction over the case.  Complaints are used in misdemeanors; information and indictment are employed in felonies.  Each is a charging document asking the court to bring a case forward to be tried.
  6. Preliminary hearing – grand jury.  Because it is a tremendous personal and financial burden to stand trial for a serious felony crime, the US Constitution provides that the state must first prove to an impartial hearing board that there is probable cause that the accused committed the crime and, therefore, that there is sufficient reason to try the person as charged.  In about half the states and the federal system, the decision of whether to bring a suspect to trial (indictment) is made by a group of citizens brought together to form a grand jury.  The grand jury considers the case in a closed hearing, in which only the prosecutor presents evidence.  In the remaining states, an information is filed before an impartial lower-court judge, who decides whether the case should go forward.  This is known as a preliminary hearing or probable cause hearing.  The defendant may appear at a preliminary hearing and dispute the prosecutor’s charges.  During either procedure, if the prosecutor’s evidence is accepted as factual and sufficient, the suspect is called to stand trial for the crime.  These procedures are not used for misdemeanors because of their lesser importance and seriousness.
  7. Arraignment.  An arraignment brings the accused before the court that will actually try the case.  There defendants are read the formal charges and informed of their constitutional rights (such as the right to legal counsel), have their bail considered, and have the trial date set.
  8. Bail or detention.  If the bail decision has not been considered previously, it is evaluated at arraignment.  Bail is a money bond, the amount of which is set by judicial authority; it is intended to ensure the presence of suspects at trial while allowing them their freedom until that time.  Suspects who cannot afford bail or whose cases are so serious that judge refuses them bail (usually restricted to capital cases) must remain in detention until trial.  In most cases, this means an extended stay in the county jail. 
  9. Plea bargaining.  After arraignment, it is common for the prosecutor to meet with the defendant and his or her attorney to discuss a possible guilty plea arrangement.  If a bargain can be struck, the accused pleads guilty as charged, thus ending the criminal trial process.  In return for the plea, the prosecutor may reduce the charges, request a lenient sentence, or grant the defendant some other consideration.
  10. Adjudication.  If a plea bargain cannot be arranged, a criminal trial takes place.  This involves a full-scale inquiry into the facts of the case before a judge, a jury, or both.  The defendant can be found guilty or not guilty, or the jury can fail to reach a decision (hung jury), thereby leaving the case unresolved and open for a possible retrial.
  11. Disposition.  After a criminal trial, a defendant, who is found guilty as charged is sentenced by the presiding judge.  Disposition usually involves a fine, a term of community supervision (probation), a period of incarceration in a penal institution, or some combination of these penalties.  Disposition is usually made after a presentencing investigation is conducted by the court’s probation staff.  After disposition, the defendant my appeal the conviction to a higher court.
  12. Postconviction remedies.  After conviction, if the defendant believes he or she was not treated fairly by the justice system, the individual may appeal the conviction.  An appellate court reviews the trial procedures in order to determine whether an error was made. It considers such questions as whether evidence was used properly, whether the judge conducted the trial in an approved fashion, whether the jury was representative, and whether the attorneys in the case acted appropriately.  If the court rules that they appeal has merit, it can hold that the defendant be given a new trial or, in some instances, order his or her outright release.  Outright release can be ordered when the state prosecuted the case in violation of the double jeopardy clause of the US Constitution or when it violated the defendant’s right to a speedy trial.
  13. Correctional treatment.  Offenders who are found guilty and are formally sentenced come under the jurisdiction of correctional authorities.  They may serve a term of community supervision under control of the county probation department; they may have a term in a community correctional center; or they may be incarcerated in a large penal institution.
  14. Release.  At the end of the correctional sentence, the offender is released into the community.  Most incarcerated offenders are granted parole before the expiration of the maximum term given them by the court and therefore finish their prison sentences in the community under supervision of the parole department.  Offenders sentenced to community supervision, is successful, simply finish their terms and resume their lives unsupervised by court authorities.
  15. Postrelease/aftercare

 

 

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

v     Actus Reus – 1.  the criminal act itself; the action must be voluntary for an act to be considered illegal; 2.  a person must act when there is a legal obligation to do so; failure to act is a criminal offense.

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

v     Mens Rea – for an act to constitute a crime, it must be done with criminal intent (carrying out an act intentionally, knowingly, and willingly

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.

 

CRIMINAL DEFENSES

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        U.S. courts usually use the M’Naghten Rule or the substantial capacity test

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