2Purpose of Criminal Laws Allow people to coexist peacefullyAllow commerce to flourishProtect people and property from injury by others
3U.S. Criminal Law SystemPerson charged is presumed innocent until proven guilty.The burden of proof is on the government.Accused must be found guilty beyond a reasonable doubt.In most other systems, person is presumed guilty unless he can prove otherwise.
4CrimeAny act done by an individual in violation of those duties that he or she owes to society and for the breach of which the law provides that the wrongdoer shall make amends to the public.
5Penal Codes and Regulatory Statutes Statutes are the source of criminal law.State penal codes and federal regulatory statutes define in detail:The activities considered to be crimes within their jurisdiction; andThe penalties that will be imposed for their commission.
6Penalties Imposed for Crimes FinesImprisonmentMeans of incapacitating wrongdoerRehabilitationDeterrent for othersPrevent personal retributionProbation
7Parties to a Criminal Action In a criminal lawsuit, the government is the plaintiff.The government is represented by a lawyer called the prosecutor.The accused is the defendant.The accused is represented by a defense attorney.
8Classification of Crimes FeloniesMisdemeanorsViolations
9Felonies The most serious kinds of crimes. May be mala in se – inherently evil.Most crimes against persons and certain business-related crimes are felonies.Usually punishable by imprisonment.Mandatory sentencing for some crimes.
10Misdemeanors Less serious than felonies. Mala prohibita – not inherently evil but are prohibited by society.Many crimes against property are misdemeanors.Usually punished by fines and imprisonment up to one year.
11Violations Crimes that are neither a felony nor a misdemeanor. Punishable by fines and, occasionally, a few days of incarceration.
12Essential Elements of a Crime Criminal ActCriminal Intent
13Criminal ActActus reus (guilty act) – the actual performance of the guilty act.Merely thinking about a crime is not a crime, because no action has been taken.
14Criminal Intent—Mens Rea Level of intent requiredSpecific intent – Accused purposefully, intentionally, or with knowledge commits a prohibited actGeneral intent – Showing of recklessness or lesser degree of mental culpabilityNon-intent crime – Imposes criminal liability without a finding of mens rea
15Criminal Acts as the Basis for Tort Action Injured party may bring tort action against a wrongdoer who has caused the party injury during the commission of a criminal act.Civil lawsuits are separate from the government’s criminal action against the wrongdoer.Criminal is often judgment proof.
16Civil and Criminal Law Compared IssueCivil LawCriminal LawParty who brings the actionThe plaintiffThe governmentTrial by juryYes, except actions for equityYesBurden of proofPreponderance of the evidenceBeyond a reasonable doubtJury voteJudgment for plaintiff requires specific jury voteConviction requires unanimous jury voteSanctions and penaltiesMonetary damages and equitable remediesImprisonment, fine, capital punishment, probation
18ArrestPolice must obtain arrest warrant based on showing probable cause.Must show substantial likelihood that they committed crime.Warrantless arrests allowed when police arrive during commission of crime, “hot pursuit” situations, or where likely evidence will be destroyed.
19Indictment or Information Grand juryDetermines whether there is enough evidence to hold accused for trialSerious crimesIssues an indictmentMagistrateDetermines whether there is enough evidenceLesser crimesIssues an information
20Arraignment Accused informed of all charges Asked to enter a plea GuiltyNot guiltyNolo contendereDoes not admit guilt, but agrees to penaltyCannot be used as evidence of liability in civil trials
21Plea Bargaining Allows accused to plead to lesser crime Saves money, timeAvoids risk of trialPrevents further overcrowding of jailsVery common
22The Criminal Trial Verdict must be unanimous. If any juror has reasonable doubt about the guilt of the accused, the accused cannot be found guilty.If jurors cannot agree, jury considered to be a hung jury. Government may retry.Convicted defendant can appeal.If defendant found not guilty, government cannot appeal.
23Murder Unlawful killing of person with malice aforethought. Different degrees of murder depending upon level of intent.Felony murder rule – death during commission of any felony may be prosecuted as murder. Intent to commit murder inferred from intent to commit other crime.
24Crimes Affecting Business RobberyBurglaryLarcenyTheftReceiving stolen propertyArsonForgeryEmbezzlementBriberyExtortionCriminal fraudIdentity theft
25Robbery The taking of personal property by use of fear or force. If a weapon is used, it is considered armed or aggravated robbery.
26Burglary Breaking and entering a dwelling at night. Has been extended to include daytime entry of any structure.
27LarcenyWrongful and fraudulent taking of another person’s personal property.Includes trade secrets, computer programs, other business property.Force or entry into a structure not required.May distinguish between grand and petit larceny, based on value of property taken.
28Receiving Stolen Property Knowingly receiving stolen property with the intention of depriving rightful owner of that property.Property must be tangible property.E.g., personal property, money, stock certificates.
29Arson Malicious or willful burning of another’s dwelling. Now extended to all structures.Includes willful burning by structure’s owner.
30Forgery Written documents fraudulently made or altered. Change affects legal liability of another.E.g., counterfeiting, falsifying public records, altering legal documents.
31EmbezzlementFraudulent conversion of property by person to whom property is entrusted.E.g., bank teller takes deposits, lawyer who steals from trust account.
32Bribery Offeror commits crime when bribe is offered. Offeree commits crime when bribe is accepted.Commercial bribery often referred to as kickback or payoff.Bribe can be of anything of value.
33Foreign Corrupt Practices Act Illegal for U.S. company or its agents to bribe a foreign official to influence the awarding of new business or retention of existing business.Firms must keep accurate books to prove that any payments were in fact lawful.Violations punishable by fines of up to $2 million and 5 years imprisonment.
34ExtortionObtaining property from another, with consent, by use of actual or threatened force, violence, or fear.Commonly called blackmail.Extortion of public officials is extortion under color of official right.
35Criminal FraudObtaining title to property through deception or trickeryIncludes mail fraud and wire fraudAlso called false pretenses or deceit
36Identity Theft Thieves obtain personal information E.g., by Dumpster diving, skimming, phishing, “pretexting”Then may engage in credit card fraudNew accounts in nameNew billing address on existing account
37Money Laundering Under Money Laundering Control Act, a crime to: Knowingly engage in monetary transaction through financial institution involving property worth more than $10,000.Knowingly engage in a financial transaction involving proceeds of an illegal activity.If convicted, fines of up to $500,000 or twice the value of the property and up to 20 years in prison.
38Criminal ConspiracyTwo or more persons enter into an agreement to commit a crime.Requires an overt act.Crime does not have to be committed.
39Corporate Criminal Liability Corporations may be held criminally liable for actions of their officers, employees, or agents.Corporate directors, officers, and employees are personally liable for the crimes they commit while acting on behalf of the corporation.May also be criminally liable for the criminal activities of subordinates.
40Racketeer Influenced and Corrupt Organizations Act (RICO) A federal crime to acquire or maintain an interest in, use income from, or conduct or participate in the affairs of an enterprise through a pattern of racketeering activity.
41RICO (continued)Fines of up to $25,000 and up to 20 years imprisonment.May forfeit property and business interests gained by RICO violations.Also may owe treble damages to civil plaintiff.
42Unreasonable Searches and Seizures Fourth Amendment protects persons and corporations from overzealous investigative activities by the government.Reasonable search and seizure by the government is lawful.Search warrants based on probable cause are necessary in most cases.
43Exclusionary RuleEvidence obtained from an unreasonable search and seizure generally may not be used at trial.Good faith exceptionEvidence may be introduced if law enforcement reasonably believed that they were acting pursuant to valid search warrant.
44Search of Business Premises Government may not search businesses without a search warrant.Certain hazardous and regulated business are exceptions.Subject to warrantless searches provided statutory procedures met.
45Privilege Against Self-Incrimination Fifth Amendment states that no person shall be compelled in any criminal case to be a witness against himself or herself.Can “take the Fifth.”Applies in both state and federal cases.Protects natural persons, not corporations or partnerships.
46Miranda Rights Rights must be read before interrogation “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney and to have an attorney present. If you cannot afford a lawyer, one will be provided to you at government expense.”Any statements or confessions obtained before the rights are read can be excluded
47PrivilegesClient can tell his or her attorney anything about the case without fear that the attorney will be called as a witness against the client.Other privilegesPsychiatrist/psychologist-patient privilegePriest/minister/rabbi/imam-penitent privilegeSpousal privilegesParent-child privilegeNo accountant-client privilege under federal law.
48Immunity from Prosecution Government may offer person immunity from prosecution in exchange for testimonyGovernment cannot pursue charges for that crime against the personPerson loses right to assert Fifth Amendment privilegePartial grants of immunity may be offered
49Double JeopardyFifth Amendment provides that persons cannot be tried twice for same crime.Accused can be tried separately for different crimes arising from same criminal act.Accused can be tried separately in different jurisdictions.
50Right to a Public Trial Sixth Amendment guarantees right: To be tried by an impartial jury of the state or district in which the accused crime was committed.To confront (cross-examine) the witnesses against the accused.To have the assistance of a lawyer.To have a speedy trial.
51Protection Against Cruel and Unusual Punishment Eighth Amendment protects criminal defendants from torture or other abusive punishment.Does not prohibit capital punishment.