NCJ Number
216219
Journal
Crime, Law and Social Change Volume: 45 Issue: 1 Dated: 2006 Pages: 27-53
Date Published
2006
Length
27 pages
Annotation
This article examines whether countering public corruption requires creation of the crime of "inexplicable wealth," and it proposes a way of dealing with corruption by public officials that protects defendants' rights in corruption cases.
Abstract
Because corruption is a well-hidden crime and direct evidence of its commission is difficult to obtain, there has been international support for legislation that creates a crime of "inexplicable wealth." A successful prosecution of this crime depends only upon establishing that the official has lived beyond his/her legitimate means. Hong Kong has enacted such a law, and the recent United Nations Convention Against Corruption asks countries to consider adopting legislation that defines a crime of "illicit enrichment." These laws, however, pose challenges to the human rights of presumption of innocence and the right of silence. The crime of "inexplicable wealth" relieves the prosecution of the full burden of proof, because it is not required to produce direct evidence of corruption. The right of silence is breached because the defendant is required to challenge a presumption of guilt. Given this erosion of defendant's rights, the author argues for a crime of corruption that includes a special rule of evidence. The essential nature of the crime would be receipt of corrupt funds rather than inexplicable wealth. The legal burden would remain on the prosecution to prove all aspects of the crime, including establishing that the funds were corruptly received; however, this would not exclude the use of a mandatory rebuttable presumption of law that excess wealth represents the proceeds of corrupt payments. This would require the defense to show that "excess wealth" presumed to come from corruption is from a legitimate source. 84 notes and appended model draft presumption of corruption