Section 4.  An Eternal Regret- Criminal Record 

 

Criminal record is what is called in slang term (in Hong Kong) "case archive".

 

Some sensational cases have taken place in Hong Kong. In one, the chairman of a publicly traded newspaper company was found to have violated criminal law in Canada but failed to disclose to the Security Exchange Commission, and was compelled to resign the chairman position. In another, a popular politician was discovered to have a criminal record; his bright and shiny political career immediately faded away. Also Canada has rejected many times Hong Kong residents with criminal records seeking immigration. And some who have already been admitted were extradited. Even a celebrity with substantial power did not escape such a fate.

 

Many countries in the world reject immigrants who have committed a crime. In recent years many resident of Hong Kong have emigrated. The department that issues "no criminal record" document, the so-called "good citizen certificate", has become extremely busy.

 

There is a rather peculiar, counterintuitive provision in American immigration law which says that a person who has been involved with a crime of "moral turpitude" will not be given immigrant status, no matter whether the crime is a misdemeanor or a felony. The American principle is to confirm that a dishonest person should not be given an opportunity to immigrate.  The unique quality of this law is that it disregards the seriousness of a crime. Crimes such as theft, fraud, and embezzlement fall within the scope of "moral turpitude". On the other hand crimes such as injuring people or robbery are outside of the scope of this law; the person committing them still has a chance to escape the Immigration and Naturalization Service hurdle. 

 

When I was handling a matter in a court, I came across the following small case. I saw a woman from Hong Kong in her twenties. From my observation she seemed to have come from a middle class family. Her parents had sent her to study in the United States. Perhaps she could not pass an examination to enter a university; so she studied in a community college. She and her friends stole something from a supermarket and were caught immediately. Later she was taken to court and charged with the crime of shop lifting or petty theft.

 

On this particular day she did not hire a lawyer and did not ask the court to appoint a Public Defender for her. The judge announced to her her rights and the accusation of petty theft.  Because she was a first time offender, the judge gave her three choices: First, plead guilty and accept probation and attend rehabilitation program and perform social services; upon satisfactory and timely completion of the rehabilitation program and social services, the judge will consider dismissing the criminal charge and there will be no criminal record. Second, she pleads guilty and receives a fine of six hundred dollars and a one year probation, but there is a criminal record in court. Third, she can choose "no contest" and the consequences are the same as in a plea of guilty.

 

This was a generous offer by American courts to a first time offender of minor crimes, allowing the defendant a chance to have a new start without leaving behind a criminal record. Obviously the woman did not understand American law. After listening to the explanation of the judge, she actually asked the judge, "Would the record you mention be sent to my parents?" The judge replied, "You are already twenty three years old. You an an adult who is responsible for yourself.  We will not notify your parents".

 

The woman thought for a moment, and then said to the judge, "I will just plead guilty and pay the fine!" When this statement was made, not only were bystanders surprised, the judge was taken aback, and then he said, "Then you are fined six hundred dollars and also will have a criminal record. You truly understand?" The woman said, "I understand, because I did steal something from another person".

 

The woman admitted that she stole something, showing her to be an honest person, but she did not understand her rights under that law and to take advantage of the opportunity to renew given her by the court. She thought that paying a fine would be the simplest resolution of the matter. The case itself was originally minor, and a fine of six hundred dollars was not a large sum. However, she might not know that leaving a criminal record of a small crime might impact her future.　　

 

Although it was none of my business, when I saw what happened in court made me quite upset.  The young woman probably did not know that while shop lifting was a minor offense, it fells within the "moral turpitude" category and might impact her future immigration status. What made me most disturbed was that when she asked the judge if the record would be sent to her parents and the judge said no, she became so relieved and pleaded guilty. The situation demonstrate a cultural difference between the Chinese and American cultures. When the Chinese children do something wrong they are most worried about their parents knowing about it. They have no idea that the parents' knowing does not affect their future, whereas being convicted in court and leaving a record would impact their entire life!  Do not think that a small crime is not a big deal, but sometimes a petty criminal matter can influence your life more seriously than a major crime. As long as the matter infringes on the law, one must not take it lightly whether the matter is big or small. 

 

Section 5. Suspended Sentence (Probation), Contempt of Court and "Three Strikes You're Out"

 

Subsection 5.1.  Fishing can result in imprisonment?

 

According to the California regulations of Fish and Games, except in specially designated fishing piers, any person who fishes by the sea or catches shrimps and crabs must purchase a license for recreational fishing and adhere to the regulations of Fish and Games. For example, a person holding this kind of license can only catch abalone on certain days of certain month each year and on each day only a designated number (usually four pieces) of abalones, with species and dimensions also specified. Abalone is a precious product so many people take chances and try to catch more. The Fish and Game Department enforces the regulation against the over fishing people very tightly and often arrests violators, among whom are often Asians who love abalones. A Chinese person was caught. He was extremely angry and said to his defense attorney, "The Fish and Game Department is obviously racist. The white people who were caught at the same time as I were released the following day. But I was held in their custody for twenty some days before I was taken to court!".

 

After the lawyer understood the facts of the case, he discovered that this gentleman was a repeat offender. In the first offense a year ago, the court assessed a fine and a suspended sentence of two years. He was not permitted within two years to hold a fishing license or engage in catching any seafood. The lawyer said to him severely, "Those people did not discriminate against you. Who told you to catch abalone again during the suspended sentence period? This time, you are not only charged with catching several abalones over the limit, you are also charged with violating the suspended sentence regulations. You have violated the suspended sentence rules, so your arrest and being held in custody are an appropriate procedure. In addition, the court ruled last year that you were not permitted to purchase a license and to fish, yet you do it anyway. This constitutes a contempt of the court. You will likely receive a long prison term by the judge!"

 

In a criminal case, if the defendant is convicted, the penalties usually include a jail sentence, a fine and a suspended sentence. A suspended sentence means that the court delays the penalty for a period of time with conditions. During this period the accused must follow rigidly the rules of behavior imposed by the court, such as reporting to the probation officer, not being allowed to drive, attending rehabilitation classes, etc. In this particular example, the court had required the defendant not to catch fish. If the performance of the defendant was satisfactory during the probation period, when the period expired the judge would have dismissed the penalty the defendant could have received. That was an act of generosity towards the defendant and also to compel his change of behavior. A violation of the rules during the probation period shows that the defendant is incapable of self discipline and follow the law; the court will impose heavy penalties.

 

Compared to imprisonment and a fine, probation is obviously much lighter. Therefore many defendants do not take it seriously and not follow the court's ruling closely. In the above example, the gentleman resumed catching abalones, and a minor crime became a serious crime. Further, by disobeying the order of the judge, a charge of contempt of court which is a serious crime, may also be filed. The consequences may be very serious indeed.  

 

Subsection 5.2.  Stealing a few cookies can bring a life sentence?

 

A thirty five year old man was charged with stealing several cookies from a restaurant in Southern California. After trial he was convicted and sentenced to a twenty five year imprisonment. Was the punishment excessive? Yes. If it were a first offense, the penalty would never be so severe. However, the Federal Government and many state governments have been passing a law that is called "Three strikes, you're out". It means that if a person has been convicted of a crime twice, the third conviction will mandate a prison sentence of at least twenty five years and up to a life sentence, no matter if the offense charged is very minor. (In the above example the man only stole a few cookies.) The idea of the law is aimed at serious criminals with repeat offenses, to isolate them from society and not to harm society and other people.

 

Although the "three strikes, you're out" law is already in effect, Federal and State governments continue to review the difficulties in enforcing the law. Two days after after this law took effect in California, hundreds of defendants were sentenced to twenty five years imprisonment and even life imprisonment, creating a heavy burden on the prison system and adding a huge load on government expenditure.

Conclusion

 

Criminal law and procedures are very a very complex subject, so we have used the real life "Simpson case" to explain. There is a consensus among the general media and members of the law profession that the "Simpson case" provides a very good lesson to understand American law. However, many people may be misled into believing that the Simpson case is a typical American criminal trial. The truth is very different. That is a very special trial and thus is called the "trial of the century". In that trial, there were factors such as the name recognition of Simpson, his wealth, the interracial marriage, the sensational media and world wide television broadcasts that absolutely do not make the trial a representative of the American trials in general. We have used that particular case to introduce American criminal law as we have said previously, because this case was so familiar to the readers from around the world.  Even more important, the process of the case can demonstrate all the procedures in criminal cases, but we hope the reader understands that this case is quite special.

 

Why is the Simpson case not representative of American criminal cases in general?

 

First, most American criminal cases are not resolved by a jury trial. About 80% of criminal cases are resolved by "plea bargain" before the matter gets to a trial. The remaining 20% of cases are also decided by a court trial.  Thus relatively very few criminal cases are decided by a jury trial.  It is rarer still to have a jury trial lasting nine months and costing the taxpayers millions of dollars. 

 

Second, most people have the misconception that the aim of American criminal trial is to search for the truth and a fair verdict and bring the criminal to justice. Actually that is only one of the aims, because the entire core of the American constitutional law is to prevent the government power from becoming too big and creating opportunity for it to abuse the people, including the use of national resources to oppress the helpless individual. Therefore the American criminal law system imposes very strict and perhaps even excessively harsh restraints and demand on the government, represented by the prosecutor, while providing constitutional protection of the defendant. For example, the defendant is presumed innocent before proven guilty, and it is deemed more important not to wrongfully convict an innocent person even if ten deserving convictions get away. The prosecution has the entire burden of proving guilt beyond reasonable doubt, and so on. All are meant to assure the protection of the rights of a criminal defendant. If the only aim of American criminal law had been to search for truth and a fair verdict, at the very least should the prosecution not be allowed to summon Simpson to testify in court about what he did the night of the crime in detail?  No, not at all. The fact is that Simpson exercised his right to remain silent under the Fifth Amendment of the Constitution and refused to testify. There was nothing the prosecutor could do.

 

Preventing "the harsh tyranny more vicious than a tiger" is the nucleus of the Conceptual foundation of American Constitution and its government. Before independence the Founding Fathers of the United States had a taste of the tyranny of the English King George the Third. So the underlying concept of the founding of the United States was: an individual, no matter how vicious and cruel (for example, Simpson), can only damage the entire society and the whole people to a limited extent, unless he has seized exclusive power. (Thus the American system of three separate branches of government and checks and balance.) An autocratic government, a Big Brother, can destroy the entire society and deprive the people of their freedom. Some people who do not comprehend the American spirit of democracy and value system may look down on America as a weak and inefficient country because of the lenient treatment of the criminal defendant under American law. When there are verdicts such as the Simpson verdict, out of frustration some people may start singing the praise of a powerful, strong authoritarian and harsh type of government, such as in Singapore. However, that would be a very superficial perspective and misunderstanding.