P A R T P A R T Crimes & Torts Crimes Intentional Torts Negligence & Strict Liability Intellectual Property & Unfair Competition 2 McGraw-Hill/Irwin Business Law, 13/e © 2007 The McGraw-Hill Companies, Inc. All rights reserved.

Crimes PA E TR HC 5 “Wherever Law ends, Tyranny begins.” John Locke

Learning Objectives  The nature and elements of a crime  Constitutional limitations on criminal law  Criminal procedure  Constitutional protections  Corporate crime 5 - 4

Nature of Crimes  Crimes are public wrongs, classified from most serious to least serious as  Felony  Misdemeanor  Infraction  To convict a defendant, government must  Demonstrate alleged acts violated criminal statute  Prove defendant’s guilt beyond reasonable doubt  Prove defendant had criminal intent 5 - 5

Proof and Intent  Defendants presumed innocent until proven guilty beyond a reasonable doubt  Most serious crimes require proof of defendant’s capacity for criminal intent ( mens rea )  Incapacity recognized: intoxication, infancy, and insanity 5 - 6

Criminal Procedure  Arrest and booking of defendant  Arrest report filed with prosecutor  If defendant charged, complaint filed  Defendant’s initial appearance before judge  Preliminary (probable cause) hearing  If probable cause exists, formal charge – information or indictment – filed with court 5 - 7

Criminal Procedure  Arraignment of defendant in which defendant enters a plea  Guilty, not guilty, no contest  Defendant who pleads not guilty and faces incarceration for more than six months may choose a jury trial  Bench trial (judge only) also available 5 - 8

Constitutional Protections  Bill of Rights: first ten amendments to the U.S. Constitution Bill of Rights  Applies to federal government and to states through due process clause of Fourteenth Amendment  Constitutionally-protected behavior cannot be criminal 5 - 9

Fourth Amendment  Fourth Amendment protects persons against unreasonable and arbitrary searches and seizures (protects privacy)  General rule: warrantless searches are unreasonable (unconstitutional)  See United States v. Hall  Many Fourth Amendment cases carve out exceptions to the general rule, establishing activities that do not constitute a search

Warrantless Searches  Supreme Court has held that constitutional warrantless searches include:  The area within an arrestee’s immediate control  Premises police enter in hot pursuit of an armed suspect  Stop-and-frisk searches for weapons  Inventory searches of property (e.g., briefcase, automobile) in an arrestee’s possession  Consensual searches

The Exclusionary Rule  Exclusionary rule prevents use of evidence seized in an illegal search in a subsequent trial of the defendant Supreme Court restricts operation of the rule

Fifth Amendment  Fifth Amendment provides a privilege or protection against compelled testimonial self-incrimination  Practical meaning: person may remain silent if making a statement would assist government in prosecuting the person  Miranda warnings safeguard the right  Also prohibits prosecutorial comments at trial about the defendant’s failure to testify

Scope of Fifth Amendment  Self-incrimination privilege applies to  Testimonial admissions (non-testimonial evidence allowed, such as fingerprints, body fluids, hair)  Humans only (not corporations)  A defendant only if he/she could be charged with a crime (not merely a civil lawsuit)  Double jeopardy clause protects defendants from multiple criminal prosecutions for the same offense

Sixth Amendment  Applies to criminal cases by guarantees of a:  Speedy trial  Impartial jury  Right to confront and cross-examine witnesses  Right to effective assistance of counsel

White Collar Crimes  Under modern rule, a business organization may be liable for criminal offenses committed by employees who acted within the scope of their employment and for the benefit of the corporation

Specific White Collar Crimes  Regulatory offenses  Fraudulent acts  Sarbanes-Oxley Act violations Bribery and Illegal Gratuities  Racketeer Influenced and Corrupt Organizations Act (RICO) violations  Computer crime

Test Your Knowledge  True=A, False = B  To convict a defendant of a crime, the government must prove beyond a reasonable doubt that the defendant committed the acts  Writing an editorial using obscenities is not a crime since all speech is fully protected by the First Amendment to the Constitution  Only felonies with possibile imprisonment require proof of the defendant’s mens rea, or criminal intent

Test Your Knowledge  True=A, False = B  A defendant may choose one of three pleas: guilty, not guilty, and no contest  The Bill of Rights is the first dozen amendments to the Constitution  The Fourth Amendment provides a privilege from self-incrimination and double jeopardy  The Fifth Amendment protects persons against unreasonable and arbitrary searches

Test Your Knowledge  Multiple Choice  Sixth Amendment to the Constitution guarantees  (a)Speedy trial  (b) Right to confront and cross-examine witnesses  (c)Right to effective assistance of counsel  (d)Impartial jury  (e)All of the above

Test Your Knowledge  Multiple Choice  Which would not be a legal search under the Constitution?  (a)Taking bag of shredded documents from the dumpster of a suspect  (b)Aerial surveillance of a manufacturing plant  (c)Thermal imaging device to detect heat in a home  (d)A stop-and-frisk search for weapons

Thought Questions  What would you do if your employer asked you to do something you believed to be a crime?  What would you do if you were arrested and you were NOT guilty of any crime?