A RIGHT WHITE COLLAR AN OVERVIEW OF PROCEDURAL RIGHTS IN WHITE COLLAR CRIMINAL PROSECUTIONS A Continuing Education SeminarAmerican Alliance for Paralegals, Inc. February 10, 2011 Presenter Jeffrey A. Ahonen
Today’s Seminar: A Law Day 2011 Preview“The 2011 Law Day theme provides uswith an opportunity to assess andcelebrate the legacy of John Adams,explore the historical and contemporaryrole of lawyers in defending the rights ofthe accused, and renew ourunderstanding of and appreciation for thefundamental principle of the rule of law.”http://www.americanbar.org/groups/public_education/initiatives_awards/law_day.html
A RIGHT WHITE COLLAR AN OVERVIEW OF PROCEDURAL RIGHTS IN WHITE COLLAR CRIMINAL PROSECUTIONSThe United State Constitution and the constitutions of the various statesguarantee particular rights of due process to citizens charged with crimes.Litigation of criminal cases is focused finely on ensuring that the rights of thecitizens -- the defendant as well as the citizenry at large -- are respected andprotected. In this seminar, an overview is presented of the procedural dueprocess rights impacted in the prosecution of white collar crime, from theinitial contact with law enforcement through sentencing. Particular emphasisis given to the perspective from the defense table, and how a paralegal canassist the defense attorney in the representation of the white collar client.
What Is White Collar Crime?http://www.huffingtonpost.com/david-mamet/annals-of-whitecollar-cri_b_21900.html
What Is White Collar Crime? Sociologist Edwin H. Sutherland originally defined the concept of “white collar” crime in the late 1930s. He distinguished this type of crime from “blue collar” street crimes such as murder, rape, assault, arson, burglary, theft, and vandalism. For Sutherland, white collar crime is “crime committed by a person of respectability and high social status in the course of his occupation” (Sutherland, 1949).White-collar criminals often are opportunists, who overtime learn the can take advantage of their circumstances toaccumulate financial gain. They are educated, intelligent,affluent, confident individuals, who were qualified enoughto get a job which allows them the unmonitored access tooften large sums of money. Many also use intelligence tocon their victims into trust relationships, then exploit thoserelationships.Sutherland, Edwin Hardin (1949). White Collar Crime. New York: Dryden Press.
A Right White Collar = Ancient Justice “Those that are not injured try and punish the unjust as much as those that are.” – Solon “You shall do no injustice in judgment. You shall not be partial to the poor, nor honor the person of the mighty. In righteousness you shall judge your neighbor.” -- Moses, Leviticus 19:35 “Rather let the crime of the guilty go unpunished than condemn the innocent.” - Justinian I
Constitutional Rights During the Investigation Amendment IV “Let’s all play Hide & Seek!” Amendment V “You have the right to be quiet, so shut up!” Amendment VI “One word: “L-A-W-Y-E-R”
The Fourth Amendment“The right of the people to be secure in theirpersons, houses, papers, and effects, againstunreasonable searches and seizures, shall not beviolated, and no Warrants shall issue, but uponprobable cause, supported by Oath or affirmation,and particularly describing the place to besearched, and the persons or things to be seized.”U.S. Const., amend IV.The Fourth Amendment applies to the states byway of the Due Process Clause of the FourteenthAmendment. Mapp v. Ohio, 367 U.S. 643 (1961).
Litigating Fourth Amendment Violations Alleged violations of Fourth Amendment rights concerning evidence are challenged via a Motion to Suppress Evidence. This motion requests that the trial court apply the Exclusionary Rule, adopted in Weeks v. United States, 232 U.S. 383 (1914) and made applicable to the states in Mapp v. Ohio, 367 U.S. 643 (1961), to prohibit the use of the unlawfully-seized evidence against Defendant. The arrest – the seizure of the person of Defendant -- is challenged via a Motion to Dismiss, which typically alleges lack of probable cause for the seizure. Illinois v. Gates, 462 U.S. 213 (1983).
The Fifth Amendment“No person shall be held to answer for a capital, orotherwise infamous crime, unless on apresentment or indictment of a Grand Jury, exceptin cases arising in the land or naval forces, or inthe Militia, when in actual service in time of War orpublic danger; nor shall any person be subject forthe same offense to be twice put in jeopardy of lifeor limb; nor shall be compelled in any criminalcase to be a witness against himself, nor bedeprived of life, liberty, or property, without dueprocess of law; nor shall private property be takenfor public use, without just compensation” U.S.Const., amend V.The right to remain silent exists during theinvestigation and interrogation phase of a legalcase. Miranda v. Arizona, 384 U.S. 436 (1966).
Litigating Fifth Amendment Violations Alleged violations of Fifth Amendment rights are challenged via a Motion to Suppress Evidence. This motion requests that the trial court apply the finding of Miranda v. Arizona, 384 U.S. 436 (1966) to rule inadmissible at trial all unlawfully-obtained inculpatory and exculpatory statements made by the Defendant.
The Sixth Amendment“In all criminal prosecutions, the accused shallenjoy the right to a speedy and public trial, by animpartial jury of the State and district wherein thecrime shall have been committed, which districtshall have been previously ascertained by law, andto be informed of the nature and cause of theaccusation; to be confronted with the witnessesagainst him; to have compulsory process forobtaining witnesses in his favor, and to have theAssistance of Counsel for his defence.” U.S.Const., amend VI.Escobedo v. Illinois, 378 U.S. 478 (1964), held thatcriminal suspects have a right to counsel duringpolice interrogations under the Sixth Amendment.
Litigating Sixth Amendment Violations Alleged violations of Sixth Amendment rights are challenged via a Motion to Suppress Evidence. This motion requests that the trial court apply the Exclusionary Rule as a sanction for the violation, in accord with United States v. Wade, 388 U.S. 218 (1967) and Gilbert v. California, 388 U.S. 263 (1967).
Constitutional Rights During Pretrial Proceedings Amendment V “Due Process” Amendment VI “Confrontation” Amendment VIII “Jail & Bail”
What Process Is Due?Lawful Arrest (IV, V)Initial Appearance on Complaint (V, VI)Bail Review (V, VIII)Preliminary Examination of Probable Cause (V, VI)Arraignment on Information (V, VI)Bail Review (V, VIII)Pretrial Discovery (V, VI)Pretrial Litigation via Motion (IV, V, VI, VIII)Jury Trial (V, VI, VIII)Sentencing (V, VI, VIII)