{ Chapter 8 Criminal Law and Business

U.S. criminal law system  Person charged is presumed innocent until proven guilty  The burden of proof is on the government  Accused must be found guilty beyond a reasonable doubt  Accused is provided with constitutional safeguards 1 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Crime  Any 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. 2 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Penal Codes  State penal codes and federal regulatory statutes define in detail:  The activities considered to be crimes within their jurisdiction  The penalties that will be imposed for their commission  Fines & imprisonment 3 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Parties to a criminal action  Plaintiff – the government  The government is represented by a prosecutor  Defendant – the accused  The accused is represented by a defense attorney 4 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Classifications of Crimes 5 Felonies Misdemeanors Violations Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Intent crimes  Criminal act (actus reus)  Criminal intent (mens rea)  Specific intent crime  General intent crime  Merely thinking about a crime is not a crime, because no action has been taken 6 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Nonintent crimes  Imposes criminal liability without a finding of intent  Often imposed for reckless or grossly negligent conduct that causes injury to another person  Involuntary manslaughter is a nonintent crime 7 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Criminal Procedure 1. Arrest 2. Indictment or information 3. Arraignment 4. Plea Bargaining 5. Criminal Trial 8 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

1. Arrest  Police must obtain arrest warrant based on showing probable cause  Warrantless arrests allowed when police arrive during:  Commission of crime  A person is fleeing from the scene of crime  A situation where evidence is likely to be destroyed 9 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

2. Indictment or information  Grand jury  Determines whether there is enough evidence to hold accused for trial  Usually for serious crimes  Issues an indictment  Magistrate  Determines whether there is enough evidence  For lesser crimes  Issues an information 10 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

3. Arraignment  Accused informed of all charges  Asked to enter a plea  Guilty  Not guilty  Nolo contendere AKA “No Contest”  Does not admit guilt, but agrees to penalty  Cannot be used as evidence of liability in civil trials 11 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

4. Plea Bargaining  Allows accused to plead to lesser crime  Saves money, time  Avoids risk of trial  Prevents further overcrowding of jails  Very common 12 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

5. Criminal Trial  Verdict must be unanimous  If any juror doubts the guilt of the accused, the accused cannot be found guilty  If jurors cannot agree, jury considered to be a hung jury  Convicted defendant can appeal  If defendant found not guilty, government cannot appeal 13 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Common Crimes 1. Murder 2. Robbery 3. Burglary 4. Larceny 5. Receiving stolen property 6. Arson 14 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

1. Murder  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 15 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

2. Robbery  The taking of personal property by use of fear or force  If a weapon is used, it is considered armed or aggravated robbery 16 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

3. Burglary  The taking of personal property from another’s home, office, or commercial or other type of building 17 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

4. Larceny  Wrongful 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 18 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

5. Receiving stolen property  Knowingly receiving stolen property with the intention of depriving rightful owner of that property  Property must be tangible property 19 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

6. Arson  Malicious or willful burning of another’s dwelling  Now extended to all structures  Includes willful burning by structure’s owner 20 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Business & “White Collar” Crimes 1. Forgery 2. Embezzlement 3. Bribery 4. Extortion 5. Criminal Fraud Money Laundering 7. Racketeering 8. Criminal Conspiracy 9. Counterfeiting Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

1. Forgery  Written documents fraudulently made or altered  Change affects legal liability of another person  Signing another person’s signature without intent to defraud is not forgery 22 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

2. Embezzlement  Fraudulent conversion of property by person to whom property is entrusted 23 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

3. Bribery  Offeror commits crime when bribe is offered  Offeree commits crime when bribe is accepted  Bribe can be of anything of value 24 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

4. Extortion  Threat to expose something about another person unless that other person gives money or property  Also known as blackmail 25 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

5. Criminal Fraud  Obtaining title to property through deception or trickery  Includes:  Mail fraud  Wire fraud  Also called false pretenses or deceit 26 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

6. Money 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 27 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

7. Racketeering  Racketeer Influenced and Corrupt Organizations Act (RICO)  Criminal 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  Civil RICO - Persons injured by a RICO violation can bring a private civil RICO action against the violator to recover for injury to business or property 28 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

8. Criminal Conspiracy  Two or more persons enter into an agreement to commit a crime  Requires an overt act  Crime does not have to be committed 29 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

9. Counterfeiting  Counterfeit Access Device and Computer Fraud and Abuse Act (CFAA)  Federal crime to use a computer knowingly to obtain:  Restricted federal government information  Financial records of financial institutions  Consumer reports of consumer reporting agencies 30 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Unreasonable Search and Seizure  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 a probable cause are necessary in most cases  Government may not search businesses without a search warrant 31 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Unreasonable Search and Seizure  Exclusionary rule  Evidence obtained from an unreasonable search and seizure generally may not be used at trial  Good faith exception  Evidence may be introduced if law enforcement reasonably believed that they were acting pursuant to valid search warrant 32 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Self Incrimination  The Fifth Amendment states that no person shall be compelled in any criminal case to be a witness against himself or herself 33 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Self Incrimination Privileges  Attorney-client privileges  Psychiatrist/psychologist-patient privilege  Priest/minister/rabbi/imam-penitent privilege  Spousal privileges  Parent-child privilege  No accountant-client privilege under federal law 34 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Self-Incrimination Protections  Immunity from prosecution  Government may offer person immunity from prosecution in exchange for testimony  Person loses right to assert Fifth Amendment privilege  Protection against double jeopardy  Fifth Amendment provides that persons cannot be tried twice for same crime 35 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Right to a Public Trial  Sixth Amendment guarantees the 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 36 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Protection Against Cruel and Unusual Punishment  Eighth Amendment protects criminal defendants from torture or other abusive punishment  Does not prohibit capital punishment 37 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.