This document provides an overview of a seminar on procedural rights in white collar criminal prosecutions. It discusses the rights guaranteed by the U.S. Constitution during a white collar criminal investigation and pretrial proceedings, including rights against unreasonable searches and seizures under the 4th Amendment, the right to remain silent under the 5th Amendment, and the right to counsel under the 6th Amendment. It also discusses how violations of these rights can be challenged in court. The role of the paralegal in assisting defense attorneys with white collar cases is discussed.
An Overview of Procedural Rights in White Collar Criminal Prosecutions
1. A RIGHT WHITE COLLAR
AN OVERVIEW OF PROCEDURALRIGHTS
IN WHITE COLLAR
CRIMINALPROSECUTIONS
A Continuing Education Seminar
American Alliance for Paralegals, Inc.
February 10, 2011
Presenter
Jeffrey A. Ahonen
2. 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
3. A RIGHT WHITE COLLAR
AN OVERVIEW OF PROCEDURALRIGHTS
IN WHITE COLLAR
CRIMINALPROSECUTIONS
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.
4. What Is White Collar Crime?
http://www.huffingtonpost.com/david-mamet/annals-of-whitecollar-cri_b_21900.html
5. 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.
9. 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
13. 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”
14. The FourthAmendment
“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).
16. Litigating FourthAmendment 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).
17. 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).
19. 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.
20. 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.
22. 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).
23. Constitutional Rights During Pretrial Proceedings
Amendment V
“Due Process”
Amendment VI
“Confrontation”
Amendment VIII
“Jail & Bail”
24. 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)
