NEWSLETTER - CRIMINAL LAW
SEXUAL ASSAULT
A person commits the offense of sexual assault when he or she intentionally or knowingly and without another person's consent causes the penetration of the anus or the female sexual organ of another person, causes the penetration of the mouth of the other person with a sexual organ, or causes the sexual organ of the other person to contact or to penetrate the mouth, anus, or sexual organ of the person or any other person.
Another person does not consent to a sexual act if the other person is compelled by physical force or violence to participate in the act, if a person threatens to use force or violence against the other person, if the other person is unconscious or is physically unable to resist, or if the other person is incapable of understanding the nature of the act because of a mental disease or defect. The other person also does not consent to the sexual act if the person has impaired the other person's capability to control his or her conduct with alcohol or drugs.
A defendant who is charged with the offense of sexual assault may be required to undergo medical testing to determine whether he or she has a sexually transmitted disease, acquired immune deficiency syndrome (AIDS), or the human immunodeficiency virus (HIV). If the defendant refuses to submit to these tests, a court may order the tests. The results of the tests are made available to the defendant and to the victim. However, the prosecution may not use the fact that the tests were taken or use the results of the tests in a criminal proceeding.
An indictment for sexual assault must allege that a defendant committed the sexual act knowingly and intentionally. The indictment must also allege the specific sexual act. The indictment must further allege that the act was nonconsensual. The indictment does not need to allege the facts that rendered the act nonconsensual.
In order to convict a defendant of sexual assault, the prosecution must prove penetration of the anus or the female sexual organ. The slightest penetration is sufficient for proof of penetration. Penetration may be proved by the testimony of a victim, by medical evidence, or by circumstantial evidence.
In order to convict a defendant of sexual assault, the prosecution must also prove a victim's lack of consent. This element is usually proved by evidence of force or threats. The element may also be proved by the victim's mental disease or defect. However, the defendant must have knowledge of the victim's mental disease or defect.
The offense of sexual assault may be brought in the county where the sexual assault was committed, where a victim may have been abducted, or in any county through which the victim may have been transported during the course of the sexual assault.
A person commits the offense of sexual assault on a child if he or she intentionally or knowingly commits any of the above acts with a person who is younger than a certain age. The child's lack of consent is not an element of the offense. The prosecution is not required to prove that a defendant knew the child's age. This offense is based on the fact that a child younger than a certain age cannot legally consent to a sexual act.
The offenses of sexual assault and sexual assault on a child are punished as felonies.
RELIEF FROM JUDGMENTS REGARDING COMPETENCY TO STAND TRIALCriminal Law & Procedure:Appeals: Right to Appeal
Criminal Law & Procedure: Habeas Corpus
A defendant does not generally have a right to appeal a judgment from a hearing on the defendant's competency to stand trial. The defendant only has a right to appeal his or her conviction for the offense with which he or she was charged.
When an appellate court reviews a defendant's conviction, the appellate court conducts a review of a hearing on the defendant's competency to stand trial. The standard that the appellate court uses to review the competency hearing is the sufficiency of the evidence standard. The appellate court determines whether any rational judge or jury could have found that the defendant failed to prove that he or she was incompetent by a preponderance of the evidence.
If an appellate court finds error in a hearing on a defendant's competency to stand trial, but finds no error in the trial of the defendant's offense, the appellate court may return the defendant's case to the trial court for a new competency hearing. If the defendant is found competent at the new hearing, the appellate court then only reviews the second competency determination. If the defendant is found incompetent at the new hearing, the defendant is entitled to a new trial after he or she has regained competency.
A defendant may raise the issue of a trial court's failure to conduct a competency hearing when he or she appeals his or her conviction. The defendant does not have to raise the issue prior to his or her appeal. If an appellate court finds that the trial court should have conducted a competency hearing, the appellate court normally returns the defendant's case to the trial court for a determination of whether a retrospective competency hearing can be held. If the trial court finds that a retrospective competency hearing can be held, the trial court proceeds with the hearing. If the defendant is found competent at the retrospective competency hearing, the defendant's conviction and sentence remain in effect. If the trial court finds that a retrospective competency hearing cannot be held, the defendant is normally granted a new trial.
In addition to an appeal of a defendant's conviction based on a judgment regarding the defendant's competency to stand trial or on a trial court's failure to conduct a competency hearing, the defendant may attack his or her conviction by filing an application for a writ of habeas corpus on the ground that the defendant was incompetent at the time of his or her trial. An application for a writ of habeas corpus is a proceeding whereby the defendant seeks to be released from custody.
At a hearing on a defendant's application for a writ of habeas corpus on the ground of the defendant's competency to stand trial, a court must ascertain whether a trial court determined the defendant's competency and whether a determination can be made on the defendant's competency to stand trial. If the court finds that there was no determination on the defendant's competency, the court must give the prosecution an opportunity to challenge its finding. If the court finds that it cannot make a determination on the defendant's competency, it must set aside the defendant's conviction and order a new trial. If the court finds that it can make a determination on the defendant's competency, it must hold a hearing on the defendant's competency to stand trial.
Stipulations of Expected Testimony, Trial Procedure, and Rules of Evidence in a Criminal TrialStipulations to Expected Witness Testimony and Documents
The parties in a criminal trial may stipulate or agree to the expected testimony of a witness that will not be able to attend or testify at trial. The parties may also stipulate to the contents of a document that will not be produced at trial. When the parties stipulate to expected witness testimony or to the contents of a document they are not stipulating to the admissibility or factual accuracy of the testimony or document. The non-requesting party may raise an independent evidentiary objection to the contents of the testimony or document. Further, the non-requesting party may introduce rebuttal evidence. The trial judge is required to instruct a jury on the factual element to which the stipulation relates to because factual issues still may remain.
Stipulations to Trial Procedure and Rules
The parties may not only agree upon facts, expected testimony, and documents but may also agree to certain procedure and rules. Often times a prosecutor or defense attorney will stipulate to the authenticity of certain items. Such items that the prosecutor or defense attorney may stipulate to include:
* Authenticity of evidence, especially documentary.
* Experts' qualifications.
* Accuracy of documents or other evidence.
* Admissibility of evidence.
By stipulating to certain items, the non-requesting party waives objecting to any foundational issues, which may have been raised prior to the admission of such items.
The trial courts generally favor stipulations to testimony, evidence, or rules. The reason why many trial courts favor stipulations is for judicial economy. It may save a tremendous amount of time and taxpayer money to permit stipulations to certain items or procedural issues. However, it is within the trial court's discretion to reject any stipulation. Sometimes trial courts do not accept all stipulations that waive foundational requirements.
Enforceability of Stipulations
The trial judge should not reject a proposed stipulation on the basis that the trial judge would have found the evidence to be admissible without the stipulation. Once the trial judge accepts the stipulation, the stipulation is enforced against both parties. In a number of jurisdictions, if the stipulation is accepted during the trial phase it is also deemed accepted during any subsequent phases such as sentencing or appeal. If a manifest injustice would result, the trial judge or subsequent judge may relieve both parties from enforcement of the stipulation. Either party may file a motion to vacate the stipulation. Common instances in which the trial judge may chose not to enforce the stipulation between the parties include:
* Mistake of fact.
* Mistake of law.
* Fraud.
* Misrepresentation.
BANK FRAUD AND FINANCIAL INSTITUTIONSCongress enacted a bank fraud statute as part of the Comprehensive Crime Control Act of 1984. The purpose of the bank fraud statute was to fill the gaps that existed with respect to fraud against federally chartered or insured institutions. Thereafter, other federal acts were passed to expand the scope and coverage of the bank fraud statute. Some of the other acts included the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, the Crime Control Act of 1990, and the Racketeer Influenced and Corrupt Organizations Act.
In order for the prosecution to be successful in its action against a defendant for bank fraud, the prosecution must show the following:
* The defendant knowingly executed or attempted to execute a scheme to defraud the financial institution.
* The defendant used false or fraudulent promises or representations to obtain money, funds, or securities.
* A financial institution was the intended party to be defrauded.
Elements Elaborated
Fraud requires a misrepresentation or concealment of a material fact. The prosecution must show that a material fact was misrepresented or concealed by the defendant in the defendant's attempt to defraud the financial institution.
The essence of bank fraud stems from the commission of the fraudulent act. The fraudulent act may include a false promise, representation, or verbal or written statement.
The property that is the subject of the fraud must include property that was owned or under the control and custody of the financial institution involved.
Types of conduct that may be construed as fraudulent conduct included under the bank fraud statute include:
* automobile title fraud
* conversion of stolen checks
* fraud involving the use of automated teller machines.
Penalties
If the defendant is convicted of fraud with respect to financial institutions, he may be fined up to $1,000,000, sentenced to up to 30 years imprisonment, or both.
FEDERAL LAWS REGARDING MURDER-FOR-HIREA person commits a federal offense when he or she travels or uses facilities in interstate or foreign commerce with the intent to murder another person for monetary compensation.
Congress enacted the federal murder-for-hire statute as part of the Comprehensive Crime Control Act of 1984. The federal murder-for-hire statute provides that anyone who travels in or causes another person to travel in interstate or foreign commerce or who uses or causes another person to use the mail or any facility in interstate or foreign commerce, with the intent to commit a murder in violation of any state law or federal law, the consideration of which is the receipt of money or anything of pecuniary value, commits the offense of murder-for-hire.
In order to convict a defendant of the federal offense of murder-for-hire, the federal government is not required to prove that the defendant intended or knew that the mail or any other facility of interstate commerce would be used or that interstate travel would occur. The government only needs to prove that the defendant used or caused another person to use the mail or any other facility of interstate commerce with the intent that a murder would be committed.
A federal court obtains jurisdiction over a prosecution for the offense of murder-for-hire by travel in interstate or foreign commerce, by the use of the mail, or by the use of any facility in interstate or foreign commerce. The terms "facility in interstate or foreign commerce" include transportation and communication. Any use of the mail, including intrastate mail, confers jurisdiction on a federal court. One interstate telephone call will confer federal jurisdiction as long as the interstate telephone call facilitated the murder. However, one intrastate telephone call will not confer federal jurisdiction.
Both a person who hires a person to commit a murder and the person who is hired to commit the murder are subject to prosecution under the federal murder-for-hire statute. The person who hires the person to commit the murder is subject to prosecution when he or she causes the person who is hired to commit the murder to use facilities in interstate commerce.
The Federal Bureau of Investigation has the authority to investigate murder-for-hire cases. The punishment for committing the offense depends upon whether a personal injury or a death occurs. If no personal injury or death occurs, a defendant may be sentenced to 10 years in prison, may be subject to a fine, or both. If a personal injury occurs, a defendant may be sentenced to 20 years in prison, may be subject to a fine, or both. If a death occurs, a defendant may be sentenced to life in prison or even death, may be subject to a fine of up to $250,000, or both.
