USA Law and Practice Contributed by: Emily Hughes, Charles Kalil, Cori Lable and Ryan Raybould, Kirkland & Ellis
Kirkland & Ellis 333 W. Wolf Point Plaza
Chicago, IL 60654 USA
Tel: +1 312 862-2000 Fax: +1 312 862-2200 Email: info@kirkland.com Web: www.kirkland.com
1. Criminal Law 1.1 Criminal Offences
In civil and administrative proceedings, plaintiffs have the burden of proof and must generally show the validity of their claims by a preponderance of the evidence. In some proceedings, plaintiffs must estab - lish substantial evidence of their claims. Defendants have the burden of proving any affirmative defences, usually by clear and convincing evidence or prepon - derance of the evidence. 1.3 Statute of Limitations A statute of limitations sets the maximum amount of time that a prosecutor in criminal cases, or a plaintiff in civil cases, has to bring charges or initiate legal proceedings. The general federal statute of limitations is five years (18 USC Section 3282). Certain securities and tax crimes, as well as major frauds against the USA, have up to six- or seven-year limitation periods (18 USC Section 1031; 26 USC Section 6531). Other serious crimes or conspiracies involving fraud or embezzle - ment affecting banks and other financial institutions have ten-year limitation periods (18 USC Section 3293 (2)). Several serious crimes have no limitation periods, such as capital murder and certain acts of terrorism (18 USC Sections 3281 and 3286). Statute-of-limitation periods normally begin when the crime is “complete”, which occurs when the last ele - ment of the crime is satisfied. For “continuing crimes”, such as conspiracy, the limitation period may not begin to run until the last affirmative act is committed in furtherance of the scheme.
In the USA, both federal and state law define and prohibit crimes, usually classified as felonies, misde - meanours or petty crimes. Felonies are the most serious offences, and include property crimes (including white-collar crimes) and crimes against persons. Felonies are punishable by more than one year in prison, but not all felonies result in imprisonment. Punishments can range from fines or limited time in prison to life without parole or death. Misdemeanours are punishable by one year or less in prison or jail, and could entail a fine, restitution, house arrest, probation or community service. In criminal offences, prosecutors must generally establish proof beyond a reasonable doubt of an act or omission (actus reus) and a culpable state of mind (mens rea), which varies by crime. Prosecutors may need to prove that a defendant acted purposely, know - ingly, recklessly or negligently. Strict liability offences – including some regulatory offences – require no showing of mens rea. Attempts to commit crimes can also carry criminal liability. Typically, prosecutors must prove that the accused intended to commit the crime and knowingly took a substantial step beyond mere preparation. 1.2 Burden of Proof As described in 1.1 Criminal Offences , the govern - ment has the burden of proof for criminal offences, and there is a presumption of innocence.
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