Criminal Law & Procedure: Sentencing: Restitution


Being a victim of a crime is a frightening experience. Until fairly recently, crime victims had no rights and did not have access to any federal, state, or local services to help them through the experience. In most states, there are now many services and resources that are available to crime victims.



Most states guarantee certain rights for crime victims. These rights include the right to be notified of all court proceedings related to the offense, the right to be protected from an offender, the right to make a statement at the offender’s sentencing, the right to restitution from the offender, and the right to information about the conviction, sentencing, imprisonment, and release of the offender. These rights also include the right to be notified of the aforementioned rights and the right to enforce these rights.



Crimes victims may obtain information about their rights from victim and witness assistance programs, which programs are usually located in city, county, state, and federal prosecutors’ offices.



There are several private nonprofit and charitable organizations that provide services to crime victims. These organizations generally provide two types of services. These services include compensation and assistance. The compensation programs reimburse crime victims for their expenses that are related to the crimes. The crimes that are covered are normally violent crimes, such as homicide, rape, drunk driving, domestic violence, and sexual abuse or neglect of children. The expenses include medical costs, mental health counseling, funeral and burial costs, and lost wages or lost support.



The Office for Victims of Crime is an agency of the United States Department of Justice, which administers the Crime Victims Fund. The Crime Victims Fund provides financial support to crime victims. The Crime Victims Fund receives money from criminal fines, forfeited bail bonds, and penalties that are collected by the United States Attorneys’ Offices, federal courts, and the Federal Bureau of Prisons. The money is collected from offenders who are convicted of federal crimes.



Services that are also available to crime victims include assistance programs, such as counseling, hotlines, and support groups.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.




Criminal Law & Procedure:Evidence:Confessions


A confession must be voluntary in order to be admitted into evidence in a criminal proceeding. When a person makes a confession, he or she is waiving his or her right against self-incrimination under the Fifth Amendment of the United States Constitution. The person may also be waiving his or her right to counsel under the Sixth Amendment of the United States Constitution.



If a person is in custody, is subject to police interrogation, and makes a confession, the prosecution must show that the person waived his or her self-incrimination rights and his or her right to counsel in order for the confession to be admitted at a trial. The prosecution must prove that the waiver was freely and voluntarily made and that it was knowingly and intelligently given.



A waiver with regard to a confession depends upon the facts and circumstances of each case and depends upon a person’s age, experience, mental capacity, and conduct. Although an express statement that the person is waiving his or her rights is not required, the waiver cannot be implied from the person’s silence or failure to act. Also, the person does not waive his or her rights by merely stating that he or she has been informed of his or her rights.



In order to make a valid waiver, a person must understand his or her rights. The person’s intelligence, mental capacity, and literacy must be taken into account. Although the fact that the person has a low intelligence does not necessarily mean that the waiver is involuntary, such a waiver is subject to more scrutiny by the courts.



A waiver is invalid is it is coerced, if it is obtained through deceit or trickery, if a person has been threatened, or if promises of leniency have been made. If the waiver is obtained as a result of these methods, it is involuntary and is inadmissible in a court of law.



Once a person makes a valid waiver of his or her rights, the waiver is not necessarily permanent. The person has a right to reassert his or her rights after the valid waiver. Whether the person has permanently waived his or her rights depends upon the length of time between initial questioning and additional questioning, whether the person was informed of his or her rights prior to the additional questioning, and whether the police honored the person’s initial invocation of his or her rights.



A person may also invoke his or her rights and later waive those rights. However, a waiver subsequent to a prior invocation of rights is subject to special scrutiny by the courts. The police cannot initiate contact with the person. The person must initiate the contact with the police. The person’s contact with the police must show a willingness and a desire on the part of the person to talk to the police about the offense with which he or she is charged. Questions that are unrelated to the offense do not constitute a subsequent waiver of the person’s rights. The person must make a valid waiver of his or her rights prior to any additional questioning.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.


Bribery and Financial Institutions


Bribery with respect to financial institutions is a federal offense. This crime involves the following elements:



    • An individual.


    • The giving or promise of anything of value to any individual.


  • The intent to influence or reward an officer, director, employee, agent, or attorney of a financial institution.






    • An officer, director, employee, agent, or attorney of the financial institution.


    • Corruptly solicits or demands something of value or accepts or agrees to accept something of value.


  • The intent to influence or reward an individual in connection with a business transaction.


The prosecution is not required to prove that the bribe was actually offered, given or promised. The only issue that the prosecution must prove is that the defendant intended to bribe another individual in the financial institution.



Elements Elaborated



A corrupt act may be defined as an act done in a voluntary and intentional manner with the purpose of accomplishing an unlawful end or result. The motive for an individual to act in a corrupt fashion may be derived from an expectation of either financial gain or benefit to profit or benefit from another.



Bribery Example



Bribery may have occurred if a loan officer solicited something of value for himself or herself in exchange for favorable treatment to the giving individual. The loan officer gave the giving individual the impression that the deal would not go through unless he or she received the item of value.






If the defendant is convicted of bribery involving a financial institution, the defendant may be fined up three times of the value of the item given or not more than $1,000,000. Further, the defendant may be sentenced to up to 30 years in prison. The defendant may also be fined and sentenced to imprisonment.



If the value of the bribe did not exceed $100, the defendant may only be fined up to $1000, may only be sentenced up to one year in prison, or both.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.


Brady Materials and Impeachment Evidence


Certain types of impeachment evidence are required to be disclosed by the Government to the defendant upon the defendant’s request. The disclosure of evidence by the Government upon the defendant’s request is commonly referred to as disclosure of Brady materials. Brady materials must be known to the Government and must be material to the defendant’s case to require disclosure. The requested impeachment evidence must have been admissible at trial because inadmissible evidence would not have had an effect on the outcome of the trial. Types of impeachment evidence that are discoverable include:



    • Promises of leniency for Government witnesses.


    • Plea agreements with respect to criminal charges against witnesses.


    • Negotiations with respect to criminal charges against witnesses.


  • Testimony that was given in exchange for governmental favors.


It is unclear whether presentence reports constitute discoverable Brady material for impeachment purposes. Presentence reports may be used for impeachment purposes. Some circuits have permitted disclosure of the reports to the defendant upon his request.



If the impeachment evidence is disclosed at the defendant’s trial, prejudice may result to the defendant because he was unable to prepare for the disclosure of such evidence ahead of time. It is within the trial court’s discretion to permit such evidence to be introduced or to grant the defendant a new trial on the basis of a Brady violation, if requested by the defendant.



Timing of Disclosure



The Government is required to disclose impeachment evidence in a reasonable time frame so that the defendant is able to use the evidence in his case. However, several courts have held that if the Government turns over impeachment evidence on the eve of defendant’s trial, the impeachment evidence is not untimely.



Brady Violation



If the Government fails to disclose Brady materials by failing to disclose impeachment evidence to the defendant upon his request, a new trial may be required to rectify the due process violation suffered by the defendant.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.