Crime

“He threatens many that hath injured one.” Ben Jonson, English Dramatist “Most of the evils of life arise from man’s being unable to sit still in a room.” Blaise Pascal, French Scientist and Religious Essayist

Criminal Procedure The process by which criminals are accused, tried, and sentenced

 Criminal law: Prohibits and punishes conduct that threatens public safety and welfare ◦ Prosecution - Only the government can prosecute a crime  Restitution: A court order that a guilty defendant reimburse the victim for the harm suffered ◦ Burden of proof - In a civil case, the plaintiff must prove her case only by a preponderance of the evidence  Beyond a reasonable doubt: The very high burden of proof in a criminal trial, demanding much more certainty than required in a civil trial

◦ Right to a jury - Facts of a case are decided by a judge or jury  Criminal defendant has a right to a trial by jury for any charge that could result in a sentence of six months or longer ◦ Felony: A serious crime, for which a defendant can be sentenced to one year or more in prison ◦ Misdemeanor: A less serious crime, often punishable by less than a year in a county jail

 Conduct outlawed ◦ Prosecution must show that the defendant’s alleged activity is outlawed by a statute ◦ Fifth and Fourteenth Amendments to the Constitution require that language of criminal statutes be clear and definite enough that:  Ordinary people can understand what conduct is prohibited  Police are discouraged from arbitrary and discriminatory enforcement

 Voluntary act ◦ A defendant is not guilty of a crime if she was forced to commit it  If she acted under duress  Guilty: A judge or jury’s finding that a defendant has committed a crime  Entrapment ◦ When the government induces the defendant to break the law:  The prosecution must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime

 Prohibits the government from making illegal searches and seizures of: ◦ Individuals, corporations, partnerships, and other organizations  Goal is to protect the individual from the powerful state

 Warrant - Must specify with reasonable certainty the place to be searched and the items to be seized ◦ A search conducted with a warrant violates the Fourth Amendment if:  There was no probable cause to issue the warrant  The warrant does not specify the place to be searched and the things sought  The search extends beyond what is specified in the warrant

 Probable cause: Likely that evidence of crime will be found in the place to be searched  Searches without a warrant – Possible under seven circumstances ◦ Plain view ◦ Stop and frisk ◦ Emergencies ◦ Automobiles ◦ Lawful arrest ◦ Consent ◦ No expectation to privacy

 Exclusionary rule - Under which, evidence obtained illegally may not be used at trial ◦ Two exceptions to the exclusionary rule:  Inevitable discovery: Permits the use of evidence that would inevitably have been discovered even without the illegal search  Good faith exception: So long as the police reasonably believed the warrant was valid, the search is legal

 The Patriot Act – An antiterrorist law passed in response to the attacks of September 11, 2001 ◦ Designed to give law enforcement officials greater power to investigate and prevent potential terrorist assaults

 National security letter: Issued by FBI to communications firms such as Internet service providers and telephone companies ◦ Demanded that the recipient furnish to the government its customer records, without ever divulging to anyone what it had done

 The Fifth Amendment - Protects criminal defendants—both the innocent and the guilty in several ways ◦ Due process: Requires fundamental fairness at all stages of the case ◦ Self-incrimination - Bars the government from forcing any person to provide evidence against himself ◦ Exclusionary rule ◦ Miranda rights

 Guaranteed by the Sixth Amendment at all important stages of the criminal process ◦ The government must appoint a lawyer to represent, free of charge, any defendant who cannot afford one

 Indictment ◦ Grand jury: A group of ordinary citizens who decides whether there is probable cause the defendant committed the crime with which she is charged ◦ Indictment: The government’s formal charge that the defendant has committed a crime and must stand trial  Arraignment - A clerk reads the formal charges of the indictment

 Discovery - During the months before trial, both prosecution and defense will prepare the most effective case possible  Plea bargain: An agreement in which the defendant pleads guilty to a reduced charge ◦ The prosecution recommends to the judge a relatively lenient sentence

 Trial and appeal - When there is no plea bargain, the case must go to trial  Double jeopardy: A criminal defendant may be prosecuted only once for a particular criminal offense  Punishment - The Eighth Amendment prohibits cruel and unusual punishment ◦ Also outlaws excessive fines  Forfeiture: A civil law proceeding that is permitted by many different criminal statutes

 Larceny: The trespassory taking of personal property with the intent to steal it ◦ Trespassory taking - Someone else originally has the property  Fraud: Deception for the purpose of taking money or property from someone ◦ Wire fraud and mail fraud ◦ Theft of honest services ◦ Insurance fraud

 Arson: The malicious use of fire or explosives to damage or destroy real estate or personal property  Embezzlement: The fraudulent conversion of property already in the defendant’s possession

 If someone commits a crime within the scope of his employment and with the intent to benefit the corporation, the company is liable

 Workplace crimes ◦ Occupational Safety and Health Act of 1970 (OSHA): Sets safety standards for many industries  Hiring illegal workers ◦ Illegal to knowingly employ unauthorized workers ◦ The employer must complete an I-9 form within three days of hiring a worker

 Racketeer Influenced and Corrupt Organizations Act (RICO): A powerful federal statute used in many criminal prosecutions and civil lawsuits ◦ RICO prohibits using two or more racketeering acts to accomplish any of these goals:  Investing in or acquiring legitimate businesses with criminal money  Maintaining or acquiring businesses through criminal activity  Operating businesses through criminal activity

◦ Racketeering acts: Any of a long list of specified crimes, such as embezzlement, arson, mail fraud, wire fraud, and so forth ◦ Treble damages: A judgment for three times the harm actually suffered, as well as attorney’s fees  Money laundering: Consists of taking the proceeds of certain criminal acts and either: ◦ Using the money to promote crime ◦ Attempting to conceal the source of the money

 Other crimes - An increasing number of federal and state statutes are designed to punish those who harm the environment

 Fines - Most common punishment for a corporation  Compliance programs ◦ Federal Sentencing Guidelines: The detailed rules that judges must follow when sentencing defendants convicted of crimes in federal court ◦ Compliance program: A plan to prevent and detect criminal conduct at all levels of the company

 For a compliance plan to be deemed effective: ◦ The program must be reasonably capable of reducing the prospect of criminal conduct ◦ Specific, high-level officers must be responsible for overseeing the program ◦ The company must not place in charge any officers it knows or should have known are likely to engage in illegal conduct ◦ The company must effectively communicate the program to all employees and agents ◦ The company must ensure compliance

“Crime has an enormous impact on business. Companies are victims of crimes, and sometimes they also commit criminal actions. Successful business leaders are ever-vigilant to protect their company from those who wish to harm it, whether from the inside or the outside.”