{ chapter 8 criminal law and business. u.s. criminal law system person charged is presumed innocent...

{Chapter 8

Criminal Law and Business

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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

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

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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.


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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


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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


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Classifications of Crimes

Felonies

Misdemeanors

Violations


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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


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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


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Criminal Procedure1. Arrest2. Indictment or information3. Arraignment4. Plea Bargaining5. Criminal Trial


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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


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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


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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


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4. Plea Bargaining Allows accused to plead to lesser crime Saves money, time Avoids risk of trial Prevents further overcrowding of jails Very common


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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


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Common Crimes1. Murder2. Robbery3. Burglary4. Larceny5. Receiving stolen property6. Arson


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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 crimeCopyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

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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


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3. Burglary The taking of personal property from another’s

home, office, or commercial or other type of building


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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 takenCopyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

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5. Receiving stolen property Knowingly receiving stolen property with

the intention of depriving rightful owner of that property

Property must be tangible property


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6. Arson Malicious or willful burning of another’s

dwelling Now extended to all structures Includes willful burning by structure’s

owner


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Business & “White Collar” Crimes

1. Forgery2. Embezzlement3. Bribery4. Extortion5. Criminal Fraud

6. Money Laundering

7. Racketeering8. Criminal

Conspiracy9. Counterfeiting


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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


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2. Embezzlement Fraudulent conversion of property by

person to whom property is entrusted


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3. Bribery Offeror commits crime when bribe is

offered Offeree commits crime when bribe is

accepted Bribe can be of anything of value


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4. Extortion Threat to expose something about another

person unless that other person gives money or property

Also known as blackmail


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5. Criminal Fraud Obtaining title to property through

deception or trickery Includes:

Mail fraud Wire fraud

Also called false pretenses or deceit


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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


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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


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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


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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


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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


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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


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Self Incrimination The Fifth Amendment states that no

person shall be compelled in any criminal case to be a witness against himself or herself


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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


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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 crimeCopyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

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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


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Protection Against Cruel and Unusual Punishment Eighth Amendment protects criminal

defendants from torture or other abusive punishment

Does not prohibit capital punishment


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