business law: chapter 5, the ethical, global, and e-commerce environment, 14th ed.,by mallor,...
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CrimesIntentional Torts
Negligence and Strict LiabilityIntellectual Property and Unfair
Competition
© 2010 The McGraw-Hill Companies, Inc. All rights reserved.
Crimes
Wherever Law ends,Tyranny begins.
John Locke
© 2010 The McGraw-Hill Companies, Inc. All rights reserved.
The nature and elements of a crime Constitutional limitations on criminal law Criminal procedure Constitutional protections Corporate crime
Learning Objectives
5 - 3
Nature of Crimes
Crimes are public wrongs, classified from most serious to least serious as Felony Misdemeanor Infraction
Purpose of criminal sanctions (fines or imprisonment): deterrence, rehabilitation, incapacitation
5 - 4
Elements
To convict a defendant of a crime, the government must Demonstrate that alleged acts violated a
criminal statute Prove beyond a reasonable doubt that the
defendant committed the acts Prove the defendant had the capacity of
criminal intent Courts narrowly interpret criminal statutes
5 - 5
Constitutional Limitations
Government may not enact an ex post facto (after the fact) law Thus a person cannot be charged with a
crime for an act that when committed was not a crime
Constitutionally-protected behavior cannot be criminal Example: Griswold v. Connecticut
5 - 6
Constitutional Limitations
First Amendment allows government to regulate indecent speech and does not protect obscene expression To determine if expression is obscene,
courts apply the three-part Miller test Example: Supreme Court applied the
Miller test to strike down most of the Congressional efforts to criminalize obscenity on the Internet
5 - 7
Proof and Intent
Defendants are presumed innocent until proven guilty beyond a reasonable doubt
Most serious crimes require proof of the defendant’s mens rea, or criminal intent Defendant must have had capacity to
form criminal intent Three types of incapacity recognized:
intoxication, infancy, and insanity
5 - 8
Criminal Procedure
Arrest and booking of defendant Arrest report filed with prosecutor If defendant charged, complaint filed
5 - 9
Initial appearance of defendant before judicial officer
Preliminary (probable cause) hearing
Criminal Procedure
If probable cause exists, formal charge – information or indictment – filed with court
Arraignment of defendant in which defendant enters a plea Guilty, not guilty, nolo contendere (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 - 10
Constitutional Protections
Bill of Rights: first ten amendments to the U.S. Constitution Literally binds only the
federal government, but applied to states through the due process clause of the Fourteenth Amendment
5 - 11
Constitutional Protections
Fourth Amendment protects persons against unreasonable and arbitrary searches and seizures Interpreted by Supreme Court to protect
a reasonable expectation of privacy General rule: warrantless searches are
unreasonable (unconstitutional) See United States v. Hall
5 - 12
What is a Search?
Many Fourth Amendment cases carve out exceptions to the general rule, establishing activities that do not constitute a search: Visual observation of things or activities
in public view Narcotics detection dogs used in a public
place to investigate luggage or cars Enhanced aerial photography of a facility
5 - 13
What is a Search?
But the Supreme Court in Kyllo v. United States, held a device not in public use to examine what would otherwise be hidden is a search, thus presumptively unreasonable without a warrant
5 - 14
Warrantless Searches
Supreme Court has held that constitutional warrantless searches include: 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 searches5 - 15
The Exclusionary Rule
The exclusionary rule prevents the use of evidence seized in an illegal search in a subsequent trial of the defendant Supreme Court
restricts the operation of the rule
5 - 16
The Fifth Amendment
The Fifth Amendment provides a privilege or protection against compelled testimonial self-incrimination Practical meaning: a person may remain
silent if making a statement would assist the government in prosecuting the person
Miranda warnings safeguard the right Also prohibits prosecutorial comments at
trial about the defendant’s failure to testify
5 - 17
Scope of Fifth Amendment
Self-incrimination privilege applies to Testimonial admissions, thus police may
compel a defendant to provide non-testimonial evidence (fingerprints, body fluids, hair)
Applies only to humans (not corporations) Applies only if a defendant could be charged
with a crime (not merely a civil lawsuit) Double jeopardy clause protects
defendants from multiple criminal prosecutions for the same offense5 - 18
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
5 - 19
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
Numerous policy debates about how to deal with corporate crime
5 - 20
White Collar Crimes
Regulatory offenses Example: violating the Clean Water Act
Fraudulent acts Examples: false claims, fraudulent
concealment, wire fraud Sarbanes-Oxley Act violations
Example: Knowingly altering documents or business records with the intent to impede a government investigation
5 - 21
White Collar Crimes
Bribery and Illegal Gratuities Such as violating Foreign Corrupt Practices
Act Racketeer Influenced and Corrupt
Organizations Act (RICO) violations Example of criminal RICO: using income
derived from a “pattern of racketeering activity”
Example of civil RICO: See Cedric Kushner Promotions Ltd. v. King
5 - 22
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