1. Q UINCY COLLEGE Paralegal Studies Program Paralegal Studies Program Business Law I Criminal Law and Procedure Business Law I Criminal Law and Procedure

2. Civil Law vs. Criminal Law Procedure for criminal trial -- government decides whether to prosecute; defendant has the right to a jury trial. Procedure for criminal trial -- government decides whether to prosecute; defendant has the right to a jury trial. In a criminal suit, the court determines guilt, so that a punishment can be given. In a criminal suit, the court determines guilt, so that a punishment can be given. A felony is a serious crime, with a sentence of one year or more in prison. A misdemeanor is less serious, often with a sentence of less than a year. A felony is a serious crime, with a sentence of one year or more in prison. A misdemeanor is less serious, often with a sentence of less than a year. Civil law concerns the rights and liabilities between private parties; criminal law concerns those activities that society has outlawed.

3. The Prosecution’s Case Conduct Outlawed Conduct Outlawed The prosecution must show that the defendant’s alleged activity is indeed illegal. The prosecution must show that the defendant’s alleged activity is indeed illegal. Burden of Proof Burden of Proof The jury must believe beyond a reasonable doubt in order to convict. This is to protect innocent defendants from undeserved punishment. The jury must believe beyond a reasonable doubt in order to convict. This is to protect innocent defendants from undeserved punishment. Actus Reus (means “the guilty act”) Actus Reus (means “the guilty act”) The prosecution must show that the defendant committed the act (not just talked about doing it). The prosecution must show that the defendant committed the act (not just talked about doing it). Mens Rea (means “guilty state of mind”) Mens Rea (means “guilty state of mind”)

4. Mens Rea The defendant must have had a “guilty state of mind.” General Intent General Intent Required by most crimes; the defendant intended to do the illegal act they are accused of doing. Required by most crimes; the defendant intended to do the illegal act they are accused of doing. Specific Intent Specific Intent Some cases require that the defendant intended to do something beyond the act they are accused of. Some cases require that the defendant intended to do something beyond the act they are accused of.

5. DefensesDefenses Insanity Insanity A defendant who can prove he was insane at the time of the crime will be declared not guilty. A defendant who can prove he was insane at the time of the crime will be declared not guilty. Most common test used to determine sanity: Most common test used to determine sanity: M’Naughten Rule: must show a serious, identifiable mental illness and that he didn’t understand the nature of his act. M’Naughten Rule: must show a serious, identifiable mental illness and that he didn’t understand the nature of his act. A very small percentage of defendants plead insanity and a very small percentage of those are acquitted. Those who are acquitted often spend longer in mental institutions than they would have spent in prison. A very small percentage of defendants plead insanity and a very small percentage of those are acquitted. Those who are acquitted often spend longer in mental institutions than they would have spent in prison.

6. Case Analysis The Insanity Defense Bieber v. People, 856 P.2d 811, 1993 Colo. Lexis 630, Supreme Court of Colorado, 1993  Facts  Issue  Decision?  Reasoning?  Facts  Issue  Decision?  Reasoning? You Be the Judge - Lower court ruling AFFIRMED Lower court ruling AFFIRMED

7. Crimes That Harm Business Larceny -- The trespassory taking of personal property with the intent to steal it. Larceny -- The trespassory taking of personal property with the intent to steal it. Someone else originally had the property. Someone else originally had the property. Applies to personal property, not services or real estate. Applies to personal property, not services or real estate. Fraud -- Deception for the purpose of taking money or property from someone. Fraud -- Deception for the purpose of taking money or property from someone. Includes bank fraud, wire and mail fraud, insurance fraud, Medicare fraud. Includes bank fraud, wire and mail fraud, insurance fraud, Medicare fraud. Arson – malicious use of fire or explosives to destroy property. Arson – malicious use of fire or explosives to destroy property.

8. Crimes That Harm Business (cont’d) Embezzlement -- Fraudulent conversion of someone else’s property already in the defendant’s possession. Embezzlement -- Fraudulent conversion of someone else’s property already in the defendant’s possession. Computer Crime -- federal statutes prohibit unauthorized access to computers: Computer Crime -- federal statutes prohibit unauthorized access to computers: in the federal government in the federal government at financial institutes involved with the government at financial institutes involved with the government by means of an internet that crosses state lines by means of an internet that crosses state lines

9. Computer Crime Statutes The Computer Fraud and Abuse Act – prohibits using a computer to commit theft, espionage, trespass, fraud and damage to another computer. The Computer Fraud and Abuse Act – prohibits using a computer to commit theft, espionage, trespass, fraud and damage to another computer. The Access Device Fraud Act – outlaws the misuse of cards, codes, account numbers, etc. The Access Device Fraud Act – outlaws the misuse of cards, codes, account numbers, etc. The Identity Theft and Assumption Deterrence Act – bars the use of false identification to commit fraud or other crime. The Identity Theft and Assumption Deterrence Act – bars the use of false identification to commit fraud or other crime. The Wire and Electronic Communications Interception Act – makes it a crime to intercept most wire, oral and electronic communications. The Wire and Electronic Communications Interception Act – makes it a crime to intercept most wire, oral and electronic communications.

10. Case Analysis Identity Theft United States v. Dragon, 471 F.3d 501, Third Circuit Court of Appeals, 2006  Facts  Issue  Decision  Reasoning  Discussion  Facts  Issue  Decision  Reasoning  Discussion

11. Crimes Committed by Business Vicarious Liability -- if someone commits a crime within the scope of his employment and to benefit the corporation, the company is liable. Vicarious Liability -- if someone commits a crime within the scope of his employment and to benefit the corporation, the company is liable. Punishment Punishment Fines -- appropriate since this hurts the profit. Fines -- appropriate since this hurts the profit. Imprisonment? -- yes, in the sense of closing down the company temporarily or permanently. Imprisonment? -- yes, in the sense of closing down the company temporarily or permanently. Compliance programs -- if a company has a valid, functioning plan to prevent and detect criminal behavior, the judge must (according to Federal Sentencing Guidelines) reduce the penalty of a crime of an employee. Compliance programs -- if a company has a valid, functioning plan to prevent and detect criminal behavior, the judge must (according to Federal Sentencing Guidelines) reduce the penalty of a crime of an employee.

12. Crimes Committed by Business (cont’d) Occupational Safety and Health Act Occupational Safety and Health Act OSHA sets standards for safety in the workplace. OSHA sets standards for safety in the workplace. A state may set standards tougher than OSHA. A state may set standards tougher than OSHA. Racketeer Influenced and Corrupt Organization Act Racketeer Influenced and Corrupt Organization Act Creates both civil and criminal law liabilities. Creates both civil and criminal law liabilities. Is aimed at organized crime -- those involved with a series of illegal acts. Is aimed at organized crime -- those involved with a series of illegal acts. Environmental Crimes -- such as illegal air and water pollution. Environmental Crimes -- such as illegal air and water pollution.

13. Case Analysis Crimes Committed by Business Commonwealth v. Angelo Todesca Corp., 466 Mass. 128, 842 N.E. 2d 930, Supreme Judicial Court of Massachusetts, 2006  Facts  Issue  Decision  Reasoning  Discussion  Facts  Issue  Decision  Reasoning  Discussion

14. Racketeering Acts Racketeering Acts Include (among others) embezzlement, bribery, arson, mail fraud, securities fraud, and wire fraud. Include (among others) embezzlement, bribery, arson, mail fraud, securities fraud, and wire fraud. To violate RICO, there must be two or more of these acts within a 10-year period, and a threat of continued criminal activity (pattern of racketeering activity). To violate RICO, there must be two or more of these acts within a 10-year period, and a threat of continued criminal activity (pattern of racketeering activity). Goals that Violate RICO Goals that Violate RICO Using criminal money to invest in or acquire a business. Using criminal money to invest in or acquire a business. Maintain a business using criminal activity. Maintain a business using criminal activity. Operate a business using criminal activity. Operate a business using criminal activity. Conspiring to do the above. Conspiring to do the above. Racketeer Influenced and Corrupt Organization Act RICO -- RICO prohibits using two or more racketeering acts to accomplish certain goals.

15. RICO (cont’d)  Requirements  Two listed offenses within a 10-year period  Threat of continued criminal activity (pattern of racketeering activity  Common Business Violations  Mail fraud  Securities fraud  Wire fraud  Bribery  Requirements  Two listed offenses within a 10-year period  Threat of continued criminal activity (pattern of racketeering activity  Common Business Violations  Mail fraud  Securities fraud  Wire fraud  Bribery

16. Penalties Under RICO  Criminal Fine up to $25,000 Imprisonment up to 20 years Forfeiture  Civil –In government suit: Divestiture Dissolution Other forfeiture –In private suit: Treble damages Attorneys’ fees  Criminal Fine up to $25,000 Imprisonment up to 20 years Forfeiture  Civil –In government suit: Divestiture Dissolution Other forfeiture –In private suit: Treble damages Attorneys’ fees

17. Case Analysis Crimes Committed by Business United States v. Kennard, 472 F.3d 851, 11 th Circuit Court of Appeals, 2006  Facts  Issue  Decision  Reasoning  Discussion  Facts  Issue  Decision  Reasoning  Discussion

18. The Criminal Process

19. The Criminal Process (cont’d) Notification to Police -- the police find out about a suspect, sometimes by an informant. Notification to Police -- the police find out about a suspect, sometimes by an informant. Warrant -- if a search is needed, police take an affidavit (sworn written statement from an informant) to a judge, who issues a warrant, giving permission to search a particular place, looking for particular evidence. (Fourth Amendment) Warrant -- if a search is needed, police take an affidavit (sworn written statement from an informant) to a judge, who issues a warrant, giving permission to search a particular place, looking for particular evidence. (Fourth Amendment) Probable Cause -- based on the information given, it is likely that the specified evidence will be found. Probable Cause -- based on the information given, it is likely that the specified evidence will be found. Search and Seizure -- police may search and seize only what is specified by the warrant. Search and Seizure -- police may search and seize only what is specified by the warrant.

20. The Criminal Process (cont’d) Arrest Warrant -- based on information found in the search, the judge may issue an arrest warrant. Arrest Warrant -- based on information found in the search, the judge may issue an arrest warrant. Arrest -- when a suspect is arrested, he is informed of his rights (Miranda warning) and booked (name, photograph and fingerprints are recorded, along with the charges). Arrest -- when a suspect is arrested, he is informed of his rights (Miranda warning) and booked (name, photograph and fingerprints are recorded, along with the charges). Self-incrimination -- the prosecution may not use coercion to force a confession from a suspect. The suspect may refuse to answer any questions that could be used to convict him. (Fifth Amendment) Self-incrimination -- the prosecution may not use coercion to force a confession from a suspect. The suspect may refuse to answer any questions that could be used to convict him. (Fifth Amendment)

21. The Criminal Process (cont’d) Indictment -- if a grand jury (ordinary citizens) determines that there is probable cause to proceed to trial, the suspect is indicted (charged with the crime). Indictment -- if a grand jury (ordinary citizens) determines that there is probable cause to proceed to trial, the suspect is indicted (charged with the crime). Arraignment -- the indictment is read to the suspect, who then pleads guilty or not guilty to the charges. Arraignment -- the indictment is read to the suspect, who then pleads guilty or not guilty to the charges. Plea Bargaining -- in many cases, the prosecution will offer to end the case with reduced charges if the defendant will plead guilty. Plea Bargaining -- in many cases, the prosecution will offer to end the case with reduced charges if the defendant will plead guilty.

22. The Criminal Process (cont’d) Trial and Appeal -- if no plea bargain is reached, the case goes to trial. The prosecution must convince the jury beyond a reasonable doubt in order to convict. Convicted defendants may appeal. Trial and Appeal -- if no plea bargain is reached, the case goes to trial. The prosecution must convince the jury beyond a reasonable doubt in order to convict. Convicted defendants may appeal. The Patriot Act of 2001 – passed in response to the terrorist acts of September 11, 2001; designed to give law enforcement officials greater power to investigate and prevent potential terrorist assaults. The Patriot Act of 2001 – passed in response to the terrorist acts of September 11, 2001; designed to give law enforcement officials greater power to investigate and prevent potential terrorist assaults.

23. Criminal Procedural Protection Description Common Identification Amendment 1. Illegally gained evidence cannot be used in criminal prosecutions. Exclusionary rule Fourth 2. Warrants for search or arrest cannot be issued without probable cause. Probable cause requirement Fourth 3. Acquitted defendants cannot be tried twice for the same crime. Double jeopardy Fifth 4. Defendants in criminal cases have the right to remain silent and cannot be compelled to testify against themselves. Miranda warning Fifth

24. Description Common Identification Amendment 5. Persons taken into custody must be informed of right to remain silent, right to counsel, and that anything they say may be used against them – confessions made without warnings cannot be used to convict a person. Miranda warning Fifth 6. Persons charged with a crime have a right to be represented by effective counsel. Miranda warning Sixth 7. Accused persons have a right to a speedy public trial by a jury of their peers. Trial by jury Sixth Criminal Procedural Protection (cont’d)

25. Description Common Identification Amendment 8. Accused persons have the right to confront and cross-examine their accusers. Right of confrontation Sixth 9. Excessive bail or fines, and cruel and unusual punishment are prohibited. No cruel and unusual punishment Eighth Criminal Procedural Protection (cont’d)

26. A Criminal Case Conviction Yes Did the Defendant have the requisite criminal intent? Yes Did the Prosecution prove each of these elements beyond a reasonable doubt? Yes Was the statute constitutionally valid? Yes No criminal conviction No Did the Defendant violate a statute?

27. End of Criminal Law and Procedure