Category: Criminal Law

I heard that the Boston Marathon bomber, Tsarnaev, can face the death penalty. So this means that Massachusetts has the death penalty? What about other states?

This is a really good question.  The answers are: Yes, Tsarnaev could receive the death penalty. No, Massachusetts does not have a death penalty. Yes, other states do impose the death penalty. The US has both federal and state court systems. Remember, because of federalism , the United States has both a federal court system and also state court systems.   Tsarnaev is currently on trial in a federal court, not state court.  The federal court is located in Massachusetts but the defendant is  facing federal charges, not state charges.  For some of his crimes, the federal court could sentence Tsarnaev to death.    Some, but not all states, impose the death penalty for certain crimes.  Massachusetts abolished the death penalty but that will not help Tsarnaev in federal court.   Tsarnaev could be tried on state charges, too. After his federal trial is over, Tsarnaev could be tried again on state charges in a Massachusetts state court.  That court could not punish Tsarnaev with the death penalty. Below is a video discussing...

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What is civil forfeiture?

Civil forfeiture is a civil, non-criminal, process where the government permanently takes away a person’s property without compensation because the property is allegedly connected to a crime.  Laws governing civil forfeiture are often different from state to state.  Also, there are differences between federal and state forfeiture laws.   There has been a great deal of criticism of civil forfeiture for a number of reasons.  Critics argue that it is (i) too easy for law enforcement to initially seize property; (ii) too easy for the government to then permanently take the property; and that (iii) law enforcement agents engage in civil forfeiture for their own benefit. I’ll focus on just a few points.  First, the law allows the government to permanently take property which is connected to a crime.  By “connected to a crime” I mean that a criminal used the property to commit a crime or bought the property with proceeds from a crime.  For example, If a criminal sells illegal drugs and buys a car, the government may be able to permanently take the car as a proceed from the crime. Forfeiture often starts with the government seizing the property.  In our example above, if the police have probable cause to think the car was bought with proceeds from a crime, the police may be allowed to take the car.  Probable cause here means a reasonable belief, which should be more than just...

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What do people mean by “the prosecutor must prove each element of a crime beyond a reasonable doubt?”

I think the key points to understand are: (i) elements of a crime; and (ii) proof beyond a reasonable doubt. Let’s start with the elements of a crime.  Elements are like ingredients.  If you’re making a vegetable soup but don’t have any vegetables then you can’t make your soup because you’re missing a key ingredient.   Now say that a state defines robbery as (i) taking someone else’s property; (ii) with the intention of stealing the property; (iii) using force or intimidation.  Items (i), (ii), and (iii) are the elements of robbery.  The prosecutor must prove all three of these elements before a person can be found guilty at trial. How sure must the jury be that the prosecutor is right?  Very very sure.  The prosecutor must prove all three elements beyond a reasonable doubt.  The prosecutor can’t just try to prove that a defendant is probably guilty of all three elements.  Probably is not enough.  The prosecutor must prove the elements with such certainty that the jury members do not reasonably doubt that the defendant is guilty. For example, let’s say Donny punches Victor and takes the phone Victor had in his pocket.  The prosecutor accuses Donny of robbery.  At trial, Donny presents evidence that Victor’s phone looked exactly like Donny’s phone and Donny thought he was trying to take back his own phone. Donny argues that he did not have...

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What is extraterritorial prosecution?

The term is a bit confusing.   Usually when people refer to extraterritorial prosecution they mean cases where a court in a defendant’s home country prosecutes the defendant for crimes he committed in another country.  The defendant is prosecuted at home, so the prosecution is really not extraterritorial, but the crime was committed outside of the country’s territorial jurisdiction.  For example, let’s say David from country A commits a crime in country B and is prosecuted for the crime back in country A – – that is usually what people mean when they say extraterritorial prosecution. In the United States federal laws usually don’t apply to activity committed in other countries.  If a US national commits a crime overseas and the crime has no connection to the United States, it is very likely that federal law will not apply to his actions and he cannot be extraterritorially prosecuted back in the US.  But there are exceptions.  Congress will sometimes expressly state that a federal law applies to conduct by a US national...

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