What is the Fourth Amendment?
The Fourth Amendment guarantees the right of people to be free from unreasonable searches and violations of privacy. The Fourth Amendment states, The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.
What is a search warrant?
A search warrant is an order issued by a judge that authorizes police officers to conduct a search of a specific location. Before a search warrant may be issued, there must be a showing of probable cause.
Can I be arrested for questioning?
No. Police can request you to accompany them to a police station for questioning but you are not required to go unless you have been arrested for an offence. It is not advisable to speak with the police until you have first spoken with your attorney. You should ask for a lawyer or independent witness to be present during questioning.
What is bail?
Bail is money or other property that is deposited with the court to ensure that the person accused will return to court when he or she is required to do so. If the defendant returns to court as required, the bail will be returned at the end of the case, even if the defendant is ultimately convicted. However, if the defendant does not come to court when required or violates his or her bail conditions, the bail will be forfeited to the court and will not be returned.
Am I entitled to a jury trial?
You have a right to a jury trial, but you must ask for it. If you do not ask for a jury, only the judge will be at your trial. The jury decides if you are guilty or not guilty. Your lawyer should help you make this very important decision.
What is the role of the jury in a criminal trial?
Jurors must take an oath to honestly; justly and impartially hear a case. A jury is a small group of citizens, chosen at random, who are asked to gather together and hear the case against an accused and to make a determination of guilt or innocence. These jurors are unbiased members of the community. Jurors have a duty to keep an open mind and must not form or express an opinion until they have heard all the evidence, the arguments of counsel, and the final instruction as to the law from the Court. Jurors are the exclusive judges of the evidence, the credibility of the witnesses and the weight to be given to the testimony. In weighing the testimony to determine what or who is to be believed, the jury should use their own knowledge, experience and common sense to guide them. The jury of twelve people selected to hear the evidence in the case must unanimously agree beyond a reasonable doubt that you are guilty in order to convict you. There are cases, however, where it may be to one`s advantage to waive trial by jury and have the evidence heard by the judge on the case. The jury in a criminal case will consider all aspects of the case in privately for as long as is needed in order to come to the unanimous decision. Once a verdict is reached, it is presented to the defendant in court. A jury may find a person guilty of all, some, or none of the crimes charged. In some cases, depending on the evidence presented and the nature of the instructions given by the court to the jury, a jury may convict a defendant of a lesser crime than that charged in the indictment. If the jury presents a not guilty verdict, then the proceedings are over and the jury verdict may not be overturned. If the verdict is guilty, then the defense may appeal the decision.
What is the role of the judge in a criminal trial?
The judge is who is in charged and controls the legal proceedings in the courtroom. The judge will determine whether certain evidence is admissible or not. They will also rule on preliminary matters and discovery and evidence issues that the defense and prosecution may have. Before a jury decides a case, the judge will instruct the jury as to how the law guides them in the particular case.
What is the sentencing hearing?
Except for minor offenses, such as infractions a sentencing hearing is held where the final sentence or penalty is determined. The law gives the judge a great deal of leeway in determining what the sentence may be. The character of and circumstances surrounding the defendant can be as important as the severity of the crime in determining what sentence will be imposed.
The sentence is imposed after the jury or judge has provided the judgment. At the sentencing hearing, both the prosecution and the defense are given the opportunity to present evidence and testimony to recommend an appropriate sentence. The judge is free to ignore these recommendations, even if the prosecutor and defense lawyer have agreed to a sentence as a part of a plea agreement.
What is an appeal?
A defendant who is found guilty of some or all charges is entitled to an appeal to at least one level of appellate court. There are several levels of courts to appeal to; an example would be appealing to the circuit court of appeals first and then up to the next level. This can potentially continue on until it reached the Supreme Court of the United States. An appeal is a formal request that a higher court review the decisions or actions of a lower court. The defendant that is found guilty in the lower court usually makes an appeal. Some grounds for an appeal may include insufficient evidence, violation of rights or possible mistakes made by the judge or even how the jury handled the case.
White Collar FAQ’s
What is white collar crime?
White collar crimes typically refer to a type of crime committed by business people, entrepreneurs, public officials, and professionals through deception, as opposed to street crimes which tend to involve force and violence (see the section on “Violent Crimes” Examples of white-collar crimes include embezzlement, bribery, extortion, larceny, fraud (e.g., health care, tax). bankruptcy, telemarketing, insurance, and mail, securities and commodities law violations, environmental law violations, price fixing, racketeering, loan sharking, black market operations, obstruction of justice and perjury, and computer fraud. Depending on whether federal or state law has been violated, white collar crimes can be prosecuted at the federal or state level. Penalties vary, but in some cases can result in large fines, restitution, and jail time.
What is larceny?
Larceny is the “taking and carrying away of tangible personal property of another by trespass with intent to permanently (or for an unreasonable time) deprive the person of his interest in the property”. Larceny must involve personal property, and it must be capable of being possessed, and carried away. Thus, real estate, services and other intangibles cannot be objects of larceny.
The commission of larceny requires that someone else’s property actually be taken away, and the intent to take it, without paying for or returning it, must also be present. Both elements are needed by definition for larceny to occur.
What is embezzlement?
Embezzlement is defined as “the fraudulent conversion of property of another by a person in lawful possession of that property”. Crimes of this nature generally have involved a relationship of trust and confidence, such as an agent, fiduciary, trustee, treasurer, or attorney.
What is forgery?
Forgery is defined as the “making or altering of a false writing with intent to defraud”. This is related to the crime of uttering a forged instrument, defined to be “offering as genuine an instrument that may be the subject of forgery and is false with intent to defraud.”
What is bribery?
Bribery is the “corrupt payment or receipt of anything of value in return for official action”. In most states now this definition has been extended to include people who are not public officials (for example, athletes). Depending on state law, bribery can be either a misdemeanor or a felony, and in some states even the offering of a bribe can constitute bribery. In some states, too, it is considered a misdemeanor not to report a bribe (or bribe offer).
What is perjury?
Perjury is the “willful and corrupt taking of a false oath in regard to a material matter in a judicial proceeding”. It is sometimes called “lying under oath”; that is, deliberately telling a lie in a courtroom proceeding after having taken an oath to tell the truth. It is important that the false statement be material to the case at hand-that it Could affect the outcome of the case. It is not considered perjury, for example, to lie about your age, unless your age is a key factor in proving the case.
Perjury can be used as a threat. Although it is a very serious crime under state and Federal laws, and while prosecutors often threaten prosecution, the number of actual prosecutions for perjury is tiny.
Perjury prosecutions stemming from civil lawsuits are particularly rare. This is because it is difficult to prove that someone is intentionally misstating a material fact, rather than simply testifying honestly from faulty memory.
What is the difference between tax evasion and tax avoidance?
The courts recognize the fact that no taxpayer is obliged to arrange his/her affairs so as to maximize the tax the government receives. Individuals and businesses are entitled to take all lawful steps to minimize their taxes.
A taxpayer may lawfully arrange his/her affairs to minimize taxes by such steps as deferring income from one year to the next. (For example, interest on property sold on 12/31/98 is taxable as part of 98 income. If the property is sold on 1/1/99, it would be taxable as part of 99 income. This is legal to do.) It is lawful to take all available tax deductions. It is also lawful to avoid taxes by making charitable contributions.
Tax evasion, on the other hand, is a crime. Tax evasion typically involves failing to report income, or improperly claiming deductions that are not authorized. Examples of tax evasion include such actions as when a contractor “forgets” to report the $10,000 cash he receives for building a pool, or when a business owner tries to deduct $100,000 of personal expenses from his business taxes, or when a person falsely claims she made charitable contributions, or significantly overestimates the value of property donated to charity. Similarly, if an estate is worth $5 million and the executor files a false tax return, improperly omitting property and claiming the estate is only worth $100,000, thus owing much less in taxes.
What is the difference between extortion and blackmail?
The terms “extortion” and “blackmail” are terms routinely used interchangeably, that is, obtaining property through the use of either oral or written threats. The threats can be of physical harm, or harm to one’s reputation, livelihood, marriage, etc. In some states extortion has only occurred when money or property has actually changed hands as a result of the threat. In other states, just the threat is enough to constitute extortion.
What is Fraud?
Fraud is defined to be “an intentional perversion of truth” or a “false misrepresentation of a matter of fact” which induces another person to “part with some valuable thing belonging to him or to surrender a legal right”.
In addition to the traditional criminal definition of fraud, there are many regulatory laws that have very specific rules that must be complied with. If you do not follow these rules to the letter, you could be charged with and convicted of fraud. Federal Securities Law cover a broad scope of possible types of fraud. Fraud is not limited to the selling of bogus securities. Securities fraud also involves the sale of legitimate securities for illegal purposes. The laws also make “insider trading” illegal. “Insider trading” generally refers to the purchasing or selling of securities of a company while in possession of material information that has not been generally disclosed in the marketplace. (See our Securities Law section for further information.)
ARE THERE DIFFERENT DEGREES OF LARCENY, EMBEZZLEMENT AND FALSE PRETENSES?
Yes. Depending on the value of the property appropriated, these crimes can be considered “petit” (which is a misdemeanor) or “grand” (which is a felony).
I was recently contacted by the EPA for the violation of the clean air Law. What action will the EPA most likely take?
It is impossible to predict how the EPA will deal with any particular violation of the environment laws. In general, however, what type of response is most appropriate will depend on the circumstances of your case, your willingness to cooperate, the severity of the situation, and any unusual or mitigating factors. What options are available to the EPA also varies under the laws EPA administers.
The options available include:
Civil actions: most environmental laws authorize the EPA through the Department of Justice to file a lawsuit in federal court to obtain civil penalties and/or appropriate injunctive relief against violators. Your permit can be suspended or revoked, you will be required to take steps to correct the violation, and you will be subject to hefty penalties. The penalties are not a modest “slap-in-the hand”: they are at least equal to the costs a company saved by not complying with applicable requirements or imposed as a per-day charge (up to a hefty $50,000 under some acts) or per violation.
Criminal action: criminal prosecution is usually reserved for the more flagrant violations and disregard of environment laws (such as “midnight dumping” of hazardous wastes) and deliberate falsification of documents or records. Criminal violations may be either misdemeanors or felonies, punishable by substantial fines (i.e. up to a maximum of $250,000 for an individual or $500,000 for a corporation) on a per-day or per-violation basis, or both) and, in addition, jail terms for corporate executives.
Administrative enforcement action: this involves only the administrative agency, not the courts, and can range from informal advisory notices or warning letter, advising the manager of a facility what violation was found, what should be done to correct it, and by what date to a more formal legal order compelling the recipient to take some corrective action within a certain time. For example, in cases of minor violations, a state inspector might issue a simple warning notice or on-site complaint. If a person does not correct the violation, EPA may go to court.
Optimally, the goal is to work together to remedy any problems identified. While the above is, certainly, in the repertoire of the EPA and state officials, alternatively there are other enforcement tools, ranging from a show-cause meeting to a settlement conference with the enforcement personnel to negotiate an resolution.
In addition to EPA fines and penalties, state and local environmental statutes, regulations, and ordinances, whether enforced by public agencies or through private citizens’ suits, can also give rise to the assessment of civil penalties. States and local agencies can file separate actions in courts to force state compliance.