(02I) Chapter 6 Crimes of Fraud

• Fraud. The term fraud does not represent a specific crime but is a general label for a number of offenses which have in common the deceiving of another by some intentional misrepresentation of a fact to cause that other person to give up something of value to the defrauder or another.

• Obtaining money or property by false pretenses is a form of larceny and means obtaining ownership of money or the property of another through an intentional misrepresentation (Section 18.2-178, Code of Virginia.)

• Defrauding an innkeeper involves the intentional misrepresentation to the victim that the defrauder will pay for the goods and/or services which the defrauder has obtained (Section 18.2-188 Code of Virginia).

• Fraudulent crimes can be either felonies or misdemeanors depending on the value of the goods, service, etc. involved.

• Felonies. If the value of the goods, services, property, money, etc. is $200 or more

• Misdemeanors. If the value of the goods, services, property, money, etc. is less than $200.

• Refer to Sections 18.2-152,153 and 18.2-168 through 246 of the Code of Virginia for additional fraudulent crimes.

• Burglary. In Virginia there are two classifications of burglary- Common Law Burglary and Statutory Burglary. Statutes, however, define both.

• Common Law Burglary. The breaking and entering of the dwelling house of another during the night with the intent to commit a felony or any larceny therein (Section 18.2-89 Code of Virginia).

• Actual breaking. The use of some amount of force, even though slight, to gain entrance.

• Constructive breaking. When entrance is gained by threats of violence or by fraud or conspiracy rather than by use of force in opening the door or window.

• Statutory Burglary. Those statutory modifications to common law burglary that now makes criminal those acts which would have been common law burglary, because one or more of its elements were missing. Statutory burglary has enlarged common law burglary to include situations in which there is:

• Entry without breaking of a dwelling house at night (Section 18.2-90, 91 Code of Virginia).

• Daytime breaking and entry of or entry and concealment in a dwelling house (Sections 18.2-90, 91, Code of Virginia).

• Entry without breaking, daytime breaking and entry, or entry and concealment at any time of buildings or structures other than dwelling houses.

• Breaking and entry of trucks, railroad cars, etc., containing shipments of freight, etc. (Section 18.2-147.1, Code of Virginia).

• Breaking and entry of an occupied dwelling house in the day or night with intent to commit assault or other misdemeanor (Section 18.2-92, Code of Virginia).

• Both common law and statutory burglaries are felonies.

• Assault/Battery

• Assault. Assault is an attempt or an offer to do immediate bodily harm to another intentionally and with apparent present ability to do so (Section 18.2-57, Code of Virginia).

• Attempted Battery Assault. The crime of battery (unlawful touching) was not completed. • There must be specific intent to do battery.

• There must be an overt act which goes beyond mere preparations and begins the execution of the battery but falls short of its completion, e.g. “A” swings at “B’, but fails to hit him Words alone are not enough to constitute the act.

• Offer To Do Harm Assault. May or may not be the same thing as attempted battery.

• The bodily harm must be immediate and not future.

• There must be an overt act and words alone are not enough.

• The actor must have the apparent present ability to do the immediate bodily harm. For example, the actor would need to be within striking distance of the victim.

• The victim is placed in reasonable or well-founded fear immediate bodily harm.

• Battery. Battery is the unlawful touching of another, however slight, when done willfully or in anger.

• For battery there is an actual touching, even a very slight one

• Depends upon the intent of the actor and not the amount of force applied • Battery always includes assault

• Battery is not a more serious crime than assault, they are both punishable to the same degree – Class 1 Misdemeanors (Section 18.2-57, Code of Virginia).

• Robbery.

• Robbery is the wrongful taking and carrying away of the personal property of another with the intent to permanently deprive the other of the property (larceny) and the taking is from the person of the victim or in his presence, against his will, by the use of or the threat of force. More simply stated, robbery is taking, with intent to steal from the victim’s person or in his presence with the use of a or threat of force (Section 18.2-58, Code of Virginia).

• For there to be a robbery, all elements of larceny must be satisfied.

• The property is in the control of the victim. He may or may not be holding it, but it must be under his immediate control.

• Robbery is a felony punishable by five years to life in prison.

• Abduction: Abduction (kidnapping) means the unlawful taking, seizing, transporting, detailing or secreting another by force, intimidation or deception with the intent to extort money or pecuniary benefit or intent to defile that person or the abduction of a female under the age of sixteen for purpose of concubinage or prostitution with the intent to deprive that person of his/ her liberty or to withhold or conceal him/her from one lawfully entitled to his/her charge (Section 18.2-47,48, Code of Virginia).

• Abduction and kidnapping are synonymous terms in Virginia.

• Abduction may be punishable as a Class 5 Felony.

• Bribery. Bribery is the offering, giving, receiving or soliciting anything of value with intent to influence the recipient’s action, as a public official (Sections 18.2-438,439,441,441.1, and 447).

• Offering or giving alone is sufficient without receipt

• Public official includes: Executive, legislative or judicial officer, sheriff or police officer either before or after he takes office.

• Officer authorized to serve legal process

• Commissioner appointed by a court

• Witness

• Official of a political party

• Public servant

• Bribery is punishable as a Class 4 Misdemeanor and includes forfeiture of the gift or gratuity.

• Refer to Sections 18.2-442 through 444.2, Code of Virginia.

• Murder. Murder is generally defined as the unlawful killing of one human being by another human being with malice.

• Malice. The committing of an unlawful act intentionally or without justification or excuse, or with ill will.

• In Virginia there are three types or degrees of murder (Section 18.2-31, 32, 33, Code of Virginia). • Capital Murder. The willful, deliberate and premeditated killing of another under any of the 15 following circumstances: 15 Crimes in VA

• a. Abduction and murder

• b. Murder for hire

• c. The killing of an inmate or state employee while in a prison or local correction facility

• d. Robbery and murder

• e. Rape and murder

• f. The killing of more than one person in the same act

• g. The killing of a law-enforcement officer

• h. The killing of more than one person in a three year period

• i. The killing of a person during a drug transaction

• j. The killing of a person by another pursuant to the direction or order of one who is engaged in a continuing criminal enterprise as per 18.2—248

• k. The killing of a pregnant woman

• 1. The killing of a person 14 years or younger by a person 21 years

• m. The killing, deliberate and premeditated killing of a person in the attempted or act of terrorism

Deadly force and 15 crimes in VA Continued

• n. The killing of a judge of any court or retired judge sitting temporary seat upon recall.

• o. The killing of any witness after being issued a subpoena from any court.

• First Degree Murder. Any murder not amounting to capital murder and which meets the elements of any one of the following types of murder:

• A willful, deliberate and premeditated killing

• Unlike capital murder, the willful, deliberate and premeditated killing constitutes murder without the need of the commission of a related crime or other condition such as murder for hire.

• A killing which takes place during the commission of, or attempt to commit, abduction, robbery, rape, forcible sodomy, inanimate object sexual penetration, burglary and/or arson.

• A killing which is committed by any one of the following methods: poisoning, lying in wait, imprisonment or starving is:

• Second Degree Murder. The least serious degree of murder and is generally found in two situations:

• Felony homicide. The unintentional killing of someone during the commission of, or attempt to commit, any felony other than those listed under first degree murder (Section 18.2-33, Code of Virginia).

• Killing which results from willful or purposeful, wrongful conduct likely to cause death or serious bodily harm.

• Manslaughter. The unlawful killing of one human being by another without malice.

• Voluntary Manslaughter. The unlawful killing of another without malice committed during a sudden heat of passion following a reasonable provocation (Section 18.2-35, Code of Virginia).

• Involuntary Manslaughter.

• The unintentional killing of another without malice during the commission of a lawful act committed unlawfully with gross or criminal negligence, or during the commission of an unlawful act not amounting to a felony (Section 18.2-36, Code of Virginia)

• Both types of manslaughter are Class 5 felonies as defined by Sections 18.2-36 of the Code of Virginia.

• Elements of a Crime. Every crime is composed of “elements” or component parts all of which must be present and provable beyond a reasonable doubt. Should one of the elements be missing either no crime has been committed or a lesser crime will exist. With only a few exceptions, all serious crimes must contain at least two elements: the criminal act and the mental element usually described as “intent”. Some misdemeanors (such as welfare offenses) and infractions (such as traffic violations) do not require intent and therefore are not considered “crimes”.

• The Criminal Act. The actual crime that has been committed.

• Omission to Act. In some cases, an omission to act is sufficient to constitute the act because there is a legally required duty to act

• The act or omission to act is different in each crime and often more than one act is required Intent. It is important that the investigator does not confuse intent with motive. Intent refers only to the state of mind with which the act is done or omitted. The motive is what prompts a person to act, or fail to act. In criminal law there is several types of intent that the investigator should recognize. General Intent. The conscious state of mind toward the criminal act and includes knowledge of the nature and consequences of the act

• Specific Intent

• Intent required as an element of a crime over and above the general intent required for the commission of the criminal act and usually requires that a specific outcome was desired. For example, to commit burglary, in addition to the general intent to commit the breaking and entering of the dwelling house of another in the nighttime, there is the added or specificintent to commit a felony or any larceny therein ( Section 18.2-89, Code of Virginia). Gross Negligence

• May serve as the mental element in somecases, e.g., involuntary manslaughter. Gross negligence is carelessness regarding a duty of care or appropriate standard of conduct which a reasonable person would exercise under the same circumstances.

• Transferred Intent. Occurs when a third party accidentally becomes involved. For example, when “A” intends to unlawfully shoot and kill “B” but misses and hits and kills “C”, the law “transfer” “A’s” intent to “C” so that “A” is guilt murder.

• Common or Combined Intent. When two or more people have a common plan or design.

• Since we are unable to read minds, the mental element must ordinarily inferred from the surrounding circumstances. This includes such things as the act itself, statements made by the accused related to the act or victims and evidence of the motive of the accused. While motive is never an element of any crime and is not required to be proved, it often serves as evidence of intent.

Forms of Evidence

• Real Evidence. Also called “demonstrative evidence” and consists of tangible objects which played a part in the matter under litigation, i.e. gun, knife, drugs, gloves, photos, etc.

• Documentary Evidence. Evidence consisting of writing, i.e., contracts, wills, notations made in the course of business. Documentary evidence is most often found in civil cases.

Requirements of Evidence

• (1) Relevance. The evidence must be relevant to the case in determining guilt or innocence

• (2) Material. The evidence must be of importance in establishing guilt or innocence

• (3) Competent. The evidence must be legally qualified and must meet the requirements of the Exclusionary Rule

• Testimonial Evidence. Evidence furnished through the testimony of witnesses. Such evidence may be based on fact or may be opinion

• Judicial Notes. Facts which are indisputable and common everyday knowledge that the court recognizes and requires no formal proof.

Methods of Proof

• Direct Evidence. Evidence which is received from a witness who has received it through one of his senses: hearing, seeing, smelling, tasting, touching

• Indirect Evidence. Also known as circumstantial evidence, which is evidence not bearing directly on the fact in dispute but on various attendant circumstances from which the judge or jury might infer the occurrence of the fact in dispute.

Degree of Proof

• Probable Cause. A set of facts and circumstances sufficiently strong in themselves to lead an ordinary prudent individual to believe that a crime has been committed and the defendant committed the crime. 51%

• Beyond a Reasonable Doubt. In all criminal cases the prosecution must prove beyond a reasonable doubt that the defendant committed the crime. 100%

• Preponderance of Evidence. In civil cases a preponderance of evidence or a greater weight of evidence is needed

• Admissibility of Evidence. Admissible evidence is evidence which is accepted by the Court for consideration. There are several factors which determine whether evidence is admissible or not: • Relevancy

• Materiality

• Competency. At common law, certain people were absolutely incompetent to testify as witnesses. The current tendency is to allow more and more people to testify and leave the weight of their testimony up to the jury.

• Minors

• Mental Competence

• Felons

• Intoxication

• Relationship

• Privileged Communications. A communication made to another which, due to the existing legal relationship, the other is barred from repeating in a criminal case when against the defendant’s interest . The court has the sole authority to determine the existence of the privilege

• Marital Privilege. A confidential communication between spouses

• Attorney /Client Privilege. While no statute exists in Virginia as to attorney/client privileges, the Supreme Court of Virginia has held that this communication is PRIVILEGED from disclosure

• Clergymen/Penitent Privilege. Codified by Section 19.2-27 1.3 Code of Virginia. One of the recognized forms of priviledged communication that protects the contents of conversations between religious advisers (priests, rabbis, minsters, etc…) and an advisee.  This means that any conversation you have with your clergy (assuming they are acting in their religious capacity) cannot be brought into court.

• Police/Information Privilege. Law enforcement officer are privileged to refuse to disclose the identity of an informant

Hearsay Rule. Hearsay evidence is knowledge that has come to the witness by some other means than his senses. Evidence which consists of what someone else heard or observed and about which the witness has only second hand knowledge.

• Inadmissibility. Hearsay evidence is inadmissible because of its unreliability. The statement was made out of court and not under oath. There is no opportunity to cross-examine the party who originally made the statement.

• Exceptions to the hearsay rule

• Prior Testimony. Testimony given at previous judicial proceedings under certain conditions in which the original witness is unavailable for testimony.

• Dying Declaration. An oral or written statement made by a mortally wounded person who knows his death is near.

• Business Entries. Entries in books and reports made during the regular course of business are admissible without the introduction of the person who made them.

• Past Recollection Recorded. Past transactions which were contemporaneously recorded

• Res Gestae. A spontaneous statement or utterance made at the time of a startling event.

• Public records

• Pedigree

Exclusionary Rule

• The exclusionary rule excludes any evidence from a trial which has been obtained in violation of the privileges guaranteed by the U.S. Constitution.

• Mapp vs. Ohio 1966

• Exculpatory Evidence

• The Commonwealth Attorney has a constitutional duty to disclose exculpatory evidence, which is evidence that will clear the defendant, when there is a specific pre-trial request to do so.

• Duke Lacrosse team

• Protection of Crime and Accident Scenes

• Chain of custody. The continuous control and custody of a piece of evidence from discovery to presentation in court.

• Discovery at scene

• Proper processing evidence

• Identification

• Mark at scene by investigator who seized it

• Sign and date with time of seizure

• Transmittal to proper laboratory technicians

• Laboratory processing

• Secure storage

• Court presentation

• All individuals involved in the chain of evidence must appear in court

• Every attempt should be made to diminish the number of people handling the evidence

• This will gain credibility as an investigator

• Logs and secure holding

• Safes, High security cabinets, and other secure containers

• One person access

• Logs

• Transportation to court

• Checking through security at courthouse

• Commonwealth Attorney

• Final disposition of evidence by Commonwealth

You have completed Chapter 6**Continue to Chapter 7**