A RIGHT WHITE COLLAR

AN OVERVIEW OF PROCEDURAL RIGHTS IN WHITE COLLAR

CRIMINAL PROSECUTIONS

A Continuing Education Seminar

American 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 us with an opportunity to assess and celebrate the legacy of John Adams, explore the historical and contemporary role of lawyers in defending the rights of the accused, and renew our understanding of and appreciation for the fundamental 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 PROSECUTIONS

The United State Constitution and the constitutions of the various states guarantee particular rights of due process to citizens charged with crimes. Litigation of criminal cases is focused finely on ensuring that the rights of the citizens -- the defendant as well as the citizenry at large -- are respected and protected. In this seminar, an overview is presented of the procedural due process rights impacted in the prosecution of white collar crime, from the initial contact with law enforcement through sentencing. Particular emphasis is given to the perspective from the defense table, and how a paralegal can assist 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?

Sutherland, Edwin Hardin (1949). White Collar Crime. New York: Dryden Press.

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 over time learn the can take advantage of their circumstances to accumulate financial gain. They are educated, intelligent, affluent, confident individuals, who were qualified enough to get a job which allows them the unmonitored access to often large sums of money. Many also use intelligence to con their victims into trust relationships, then exploit those relationships.

Faces of White Collar Crime

Faces of the White Collar “Collar”

Facing the White Collar “Collar” -- Rightly

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

A Right White Collar = American Justice

A Right White Collar = American Justice x 52

Criminal Law Jurisdictions

Fifty States

District of Columbia

Federal Jurisdiction

A Right White Collar = Constitutional Right

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 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 persons or things to be seized.” U.S. Const., amend IV.

The Fourth Amendment applies to the states by way of the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643 (1961).

Exercising Your Fourth Amendment Rights

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, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation” U.S. Const., amend V.

The right to remain silent exists during the investigation and interrogation phase of a legal case. Miranda v. Arizona, 384 U.S. 436 (1966).

Exercising Your Fifth Amendment Rights

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 shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” U.S. Const., amend VI.

Escobedo v. Illinois, 378 U.S. 478 (1964), held that criminal suspects have a right to counsel during police interrogations under the Sixth Amendment.

Exercising Your Sixth Amendment Rights

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)

Exercising Your Due Process Rights

Exercising Your Due Process Rights

McKenzie’s Warning

1. You’re the boss!

2. Shut up!

3. Get help!

White Collar Litigation: Role of the Paralegal