Chapter 10

True or false. Clear and convincing evidence can be used in a civil case?

True. this is between the preponderance of the evidence and beyond reasonable doubt. An example is with slanderous speech. For a politician case, this is typically used to give them more leeway

True or false. If there is a mistrial, the prosecution has the right to do a retrial ( in a criminal case)

true

True or false. In a civil case and you lose, you are found liable. In a criminal case and you lose, you are found guilty.

true

True or false. In a civil case, the losing side has the right to appeal to the intermediate level of appeals (federal level would be the circuit court)

true

True or false? During a grand jury hearing, the defendant is not allowed to present evidence, provide witness testimonies, or appear in front of the grand jury.

true

True or false? In a misdemeanor case, the first appearance may be combined with the arraignment.

true

true or false? you cant pleas the fifth in a civil trial

true

How many criminal codes exist?

-52 -One of each of the 50 states, one for washington dc, and one for the fed govt

How does a civil trial get started?

File a lawsuit -Do this by going to website of the court. -Download a complaint -Put identifying info and the info of defendant -Indicate why you are suing and provide a law -Provide a summart of facts -The case is then assigned to a judge -May be asked to defend case

What are some of the consequences of business crimes?

In addition to corporations paying fines in the hundreds of millions of dollars, people like you (honest, hard-working individuals) sometimes get caught up in a web of deceit and destruction. For such individuals, the U.S. Sentencing Commission reports that the majority of offenders serve prison terms and pay significant fines. Additionally, if you have a professional license, such as an attorney or CPA license, you will likely have it revoked by a licensing board. In other words, your professional career may be over.

mens rea

Latin term for "guilty mind." -This is what criminal intent is often referred as

non intentional crime

Persons can be convicted of a strict liability crime even if the mens rea cannot be proven.

What is usually captured in the booking process and why?

-Information about the suspect, including the suspect's name, birth date, social security number, driver's license number, address, telephone number, and emergency contact information. -A photograph of the suspect. Police use photographs to identify the suspect and distinguish the suspect from other individuals with the same name. -Collection and storage of the suspect's property. After the suspect's property has been collected, the police typically provide the suspect with a receipt of the property seized. An arrest is often the culmination of a criminal investigation and the beginning of the prosecutorial process. -Fingerprints of the suspect. Fingerprints of the suspect are matched against those identified at the crime scene. They are also entered into a national FBI database. -Body search of the suspect. Body searches are conducted to discover the existence of possible contraband. -Health screening of the suspect. A health screening protects law enforcement officials as well as other inmates from communicable diseases.

case study of iris

-Ken was previously indicted because he was helping people do fradulent tax work. He had his sentence reworked so that he could help the FBI find corrupt public officials because he was very good at being persuasive -He went to a business convention in boston and was on a coffee break when he met iris, who worked on building prjects on federal property -It would be difficukt for kens friend to get permits. Ken then removed an envelope from his briefcase and told Iris it contained $10,000 in cash. -She didn't touch it and went back to suitcase -She finally met with the associate after 6 phone calls -She talked to emily, the associate, about the plans. She was convinced that this would help the community, which was her rationalization. -Emily offered her the cash -Iris hesitated, but then placed the envelope in her briefcase. At that point, Emily identified herself as an FBI special agent and arrested Iris, charging her with bribery in violation of 18 U.S.C. §201 (Bribery of Public Officials and Witnesses).

what are the steps in the criminal investigative process?

-Law enforcement conducts an investigation -They decide if their is sufficient evidence for a probable cause hearing -The person is then arrested if their is probable cause -They are booked -They then have their first appearance (prosecutorial process) -After the first appearance, the process can split of into two ways: an info indictment or a grand jury indictment -After the information or grand jury indictment, the defendant is arraigned -After the arraignment, the plea occurs -Then the trial and the potential to appeal

What elements must the prosecutors prove to convict an offender of money laundering?

-The defendant consummated a financial transaction; -The defendant knew the transaction involved an unlawful activity; -The funds generated by the transaction were, in fact, from illegal activities. -One (or more) of the following four situations was also present: -ˆ The defendant engaged in the transaction with the intent to further the illegal activity through the consummation of the transaction; -ˆ The defendant engaged in the transaction with the intent to commit tax fraud; -ˆ The defendant engaged in the transaction knowing that the transaction was designed to disguise the source of the money; or -ˆ The defendant engaged in the transaction knowing that the transaction was designed to avoid currency transaction reporting laws.

what are the miranda warnings (list)

-You have the right to remain silent. -Anything you say can and will be used against you in a court of law. -You have the right to an attorney. -If you cannot afford an attorney, one will be appointed for you.

What are the 2 broad and distinct forms of rights and duties that the law encompasses?

-civil law -criminal law

What are the 2 aspects of a crime that the law recognizes?

-criminal intent -criminal act

common defense: entrapment

Defendant alleges that a law enforcement officer induced her to commit the crime for which she has been charged.

common defense: mistake of law

Defendant asserts he failed to understand the criminal consequences of certain conduct.

common defense: duress

Defendant asserts she was compelled to act contrary to her beliefs and judgment because of a threat of harm.

common defense: statute of limitations

Defendant assets that the case cannot be pursued by law enforcement because the time permitted by law to prosecute the case has expired.

common defense: mistake of fact

Defendant claims she acted from an innocent misunderstanding of fact rather than with a criminal intent.

common defense: insanity

Defendant states that a mental disorder caused him to commit the alleged crime.

model penal code

The American Law Institute first published the Model Penal Code in 1962. It is not an official code (it serves as a model only), but it nonetheless has significantly influenced in the shaping of the various state criminal codes over the past 50 years.

beyond a reasonable doubt

The burden of proof used in a criminal case -the jury begins its deliberations with a presumption that the defendant is innocent; whereas in a civil trial, the jury does not begin its deliberations with any presumptions. -Additionally, unlike the preponderance of the evidence standard where the jury may have some doubt about its conclusions, the jury in a criminal case must be convinced "beyond a reasonable doubt" that the prosecution is correct in its assertions about the defendant's guilt.

how does the criminal law process begin?

With an investigation by law enforcement

grand jury indictment

a body of citizens chosen to hear evidence of an alleged crime and decide whether or not to issue an indictment.

entrapment

a defendant alleges that a law enforcement officer (or some other government official) induced her to commit the crime for which she has been charged. -defendant convinces the jury that she would not have acted in a "criminal manner" but for the undue persuasion imposed on her by the law enforcement official

insanity

a defendant states that he is not responsible for his actions during the time in question because he was suffering from a mental disorder. -An assertion made by the defense -Once this is claimed, the defendant isn't jus acquittted, but they are often put into a mental institution

arrest

a forcible restraint of a suspect for the purpose of placing the suspect in police custody and bringing the suspect before a court of law.

information (indictment)

a formal criminal charge made by the prosecutor without a grand jury indictment. -the legal device used to prosecute misdemeanors in most states. -a formal document is issued that charges the defendant with specific crimes. -Happens after the first appearance

indictment

a formal written accusation of a crime, made by a grand jury and presented in court as part of the prosecution of the defendant.

probable cause

a suspect's Fourth Amendment rights, which provide that: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be searched." -if law enforcement officials conclude there is enough evidence of a crime to show probable cause, they will present the evidence to a magistrate to request a search warrant or an arrest warrant. -Requires the use of an objective test -An objective test eliminates the subjective views of the police by requiring that a reasonable person, after viewing all of the evidence, would conclude that a crime had occurred. -Once probable cause is determined, an arrest warrant is issued

wire fraud

a type of fraud perpetrated by using electronic communications. -The federal Wire Fraud Act provides that any artifice to defraud by means of wire or other electronic communications (such as radio and television) in foreign and interstate commerce is a crime.

battery

an intentional and offensive touching of a person without lawful justification. -Often if convicted, the victim will likely received a monetary reward

felonies

are serious crimes. They are usually punishable by imprisonment for more than one year and often impose significant penalties. -Examples of felonies include burglary, arson, rape, and murder.

business crimes

arise in a variety of national and international settings. They typically involve illicit activities characterized by deceit and a breach of trust. -occur in normal organizational settings without violence. -cost U.S. citizens billions of dollars each year. -Ex, include embezzlement, theft, money laundering, investor fraud, tax fraud, and similar kinds of nonviolent crimes. -erode the trust we place in business professionals and place a significant financial burden on society -personal gain or business advantage often serve as the motivation for the commission of business crimes.

standing

asking the judge for permission to enter the court and have your case heard

arrest warrant

authorizes law enforcement officials to arrest the suspect and present the suspect to the court. -Occurs once probable cause is established

search warrant

authorizes the police to conduct a search of a specified place and to gather evidence relative to the crime in question. -Probable cause must be established first

what is the outcome sought for civil and criminal law?

civil law Receipt of monetary damages for harm inflicted by the wrongdoer or injunctive relief to prohibit the wrongdoer from continuing the harmful activity. criminal law Punishment of the offender for harm inflicted on society. Fines and incarceration represent common forms of punishment.

what is the goal of criminal law and civil law?

civil law To resolve disputes between individuals or entities (such as corporations). criminal law To punish offenders (individuals or entities) who violate the law.

what is the judicial process for civil and criminal law?

civil law A civil process where one party (wrongdoer/defendant) is compelled to answer to a complaint filed by an injured party/plaintiff. criminal law A criminal process where one party (offender/defendant) is compelled to answer to the state (prosecutor) for the commission of an alleged crime.

what is the moving party of civil law and criminal law?

civil law A private citizen (individual or entity) initiates a civil judicial proceeding. criminal law A public employee (prosecutor) initiates a criminal judicial proceeding on behalf of the government.

what is the appeal for civil and criminal law?

civil law Either party may appeal a decision in a civil suit. criminal law Only the defendant may appeal a verdict in a criminal case. The prosecution cannot appeal if the defendant is found not guilty.

what is the reason for legal action in civil and criminal law?

civil law One party (individual or entity) injures another or their property. criminal law An individual or entity commits a crime (violates the law).

what is the burden of proof for civil and criminal law?

civil law Preponderance of the evidence. criminal law Beyond a reasonable doubt.

duress

compels an individual to act contrary to his or her better judgment. -Threat of harm to the individual underlies the compulsion to act opposite of ones beliefs -The defense of duress excuses a person's otherwise illegal acts -Difficult to prove

civil law

covers the rights and duties individuals owe to one another -Goal is to resolve disputes between parties (individuals or entities) -Court may require the defendant to compensate the injured party for damages suffered at the hands of the defendant.

corporate crimes

crimes committed by a corporation's representatives acting on behalf of the corporation -Although a corporation, as an artificial entity, cannot commit a crime other than through its representatives, state and federal statutes provide for corporations themselves to be named as criminal defendants.

criminal intent

deals with a defendant's state of mind when committing a crime. -often referred to as the mens rea, which is the Latin term for "guilty mind." -For most crimes, the prosecution must prove "beyond a reasonable doubt" that the defendant intended to commit the crime for which the defendant has been charged. -In practical terms, a person's "intent" relates to that person's state of mind while performing an accompanying act.

statute of limitations

defense is to protect defendants from having to defend themselves against charges associated with events that occurred many years ago. -problem relates to evidence that may have grown "stale" or may no longer exist. -a defendant's failure to raise it prior to trial often results in a waiver of the defense.

plaintiff

describes an injured party who petitions the court for relief -They are the ones who initiate a lawsuit by filing a complaint with the court

defendant

describes the party who caused the injury or damage. -prepares an answer to the various points made in the plaintiff's complaint.

answer (to a complaint)

formal court document that addresses the merits of the plaintiff's case, typically by refuting some or all of the allegations made by the plaintiff. -Used by the defendant to establish relevant defenses and to state possible counter claims

strict liability crime

hold a defendant responsible based on a criminal act alone. -No accompanying mental state (mens rea) is necessary. -fall into a category of crimes known as "nonintentional" crimes: -Persons can be convicted of a strict liability crime even if the mens rea cannot be proven. -Common examples of strict liability crimes include traffic violations and statutory rape.

magistrate

in a criminal proceeding is typically a judicial officer with limited jurisdiction and authority. -Law enforcement officials go the magistrate if they find probable cause to the crime and request a warrant or try to make an arrest

investigations

include the process of interviewing individuals familiar with the crime and gathering physical evidence, such as computer files, paper documents, and so forth

What type of party is the one to initiate legal action in a civil suit?

individual or business entities

interrogations

involves intensive questioning by law enforcement officials of a person suspected of committing a crime. -Once the investigation has moved from a general interview to a formal interrogation, an important constitutional protection comes into play. -The official that is interrogating must inform the person of their constitutional right, which is often through reading their miranda rights

embezzlement

involves the fraudulent taking of personal property with the intent to deprive the rightful owner of its usefulness and benefits. -occurs when a person has been entrusted with the care and management of another's property. Thus, the crime of embezzlement happens only after the offender assumes illegal possession of the property, for the offender otherwise has lawful possession of the property up to the point where the conversion occurs. -It is common for the embezzler to have a fiduciary relationship with the rightful owner of the property -It is common for the relationship to be employer/employee

criminal law

involves the rights and duties that individuals owe to society -Goal is to punish offenders (individuals or entities) who violate the law.

US sentencing Commission

is an independent agency of the judicial branch of the federal government of the United States. It is responsible for articulating the sentencing guidelines for the United States federal courts -Implemented rules aimed at reducing business crimes in thee US -proposed compliance and ethics programs with vigorous "due diligence" and "risk assessment" requirements to encourage companies to strive for the elimination of business crimes and to create an ethical corporate culture.

misdemeanors

less serious crimes and are usually punishable by minor fines and imprisonment for one year or less.

economic crime

nonphysical crime aimed at obtaining a financial gain or a professional advantage. -Economic crimes come in two forms -The first category consists of crimes committed by employees (or others who stand in a position of fiduciary responsibility) for personal gain without enhancing the profits of the company for which they work. -Embezzlement is an example. -the second type of economic crime arises when employees (or other individuals) commit crimes for profit on behalf of the company for which they work. -Filing false financial statements showing artificially inflated profits with the Securities and Exchange Commission represents an example of this type of economic crime.

bribery

occurs when a public official provides a service beyond what is expected or required in the normal performance of the official's duties in exchange for money. -Individuals (or entities such as corporations) who give a public official money or other valuable property in exchange for improper services (i.e., services beyond what is expected or required) may also be guilty of the crime of bribery.

mail fraud

occurs when the offender perpetrates the fraud by using the U.S. Postal Service, FedEx, or UPS to make false representations and collect money illicitly

warrantless arrest

occurs without a warrant, based on probable cause of a felony or a misdemeanor committed in the presence of law enforcement officials. -Officials cannot arrest a person in their house without an arrest warrant

miranda warnings

read to suspects as a means of protecting their Fifth Amendment right against self-incrimination during a police interrogation and their Sixth Amendment right to the assistance of legal counsel. -You have the right to remain silent. -Anything you say can and will be used against you in a court of law. -You have the right to an attorney. -If you cannot afford an attorney, one will be appointed for you

trial

refers to a formal judicial examination of evidence and the determination of legal claims in an adversary proceeding.

appeal

refers to a formal judicial examination of evidence and the determination of legal claims in an adversary proceeding. -In a civil case, either party can appeal -In a criminal case, the defendant may appeal the guilty verdict but the prosecutor is precluded from appealing the decision of the jury if the jury finds the defendant not guilty.

plea bargain

refers to a negotiated agreement between the prosecutor and the defendant whereby the defendant typically pleads guilty to a lesser offense in exchange for some concession by the prosecutor, usually a more lenient sentence or the dismissal of other charges. -How most cases are resolved

Plea

refers to the defendant's formal response to a criminal charge. -Follows the arraignment -Many cases are resolved through a plea bargain

booking

refers to the process of capturing and recording relevant information about a suspect after the suspect has been arrested.

criminal act

refers to the specific acts performed by a defendant in carrying out a crime. -represent those deeds that comprise the physical components of a crime. -prosecution must prove beyond a reasonable doubt that a criminal act has occurred (actus reus) and that the defendant possessed the necessary mental intent (mens rea) to commit the crime.

actus reus

relates to a defendant's criminal act, which is the Latin phrase for "guilty act."

burden of proof

relates to a party's responsibility when attempting to prove an assertion. -In a civil case, both the plaintiff and the defendant present evidence to prove their assertions. -The burden of proof in a civil case is known as the preponderance of the evidence standard

first appearance

represents a defendant's first appearance in court -Aka initial appearance -court officers read the criminal charges to the defendant, advise the defendant of his legal rights, and inform the defendant of the court's bail determination. -required by statute to occur without undue delay

fraud

represents a knowing misrepresentation of the truth or concealment of material facts that causes others to act in a way that is detrimental to their self-interest.represents a knowing misrepresentation of the truth or concealment of material facts that causes others to act in a way that is detrimental to their self-interest.

crime

represents the breach of a legal duty that is punishable by imprisonment and fines. -what A crime constitutes an offense against society as a whole. the state prosecutes a crime as a means of preserving peace and pursuing justice for the benefit of society as a whole. -a victim may be able to bring a civil lawsuit against the perpetrator of a crime. The desired outcome of a civil case is not to imprison the perpetrator, but for the victim to seek redress in the form of monetary damages.

preponderance of the evidence standard

represents the standard of proof used by a fact-finder (a judge or a jury) in weighing the credibility of the evidence presented by the plaintiff and the defendant. -This is the burden of proof in a civil case -Judge instructs jury to find in favor the party who has presented the strongest and most credible evidence in support of their respective assertions. Under the preponderance of the evidence standard, the difference in the credibility of the evidence presented by the parties may be slight. -jury can retain doubt about the credibility of both witnesses but still conclude that one witness is more credible than the other. -You are 51% sure. It is "more likely than not" -This is less of a burden than in a criminal -You have to be 51% sure that someone is liable

According to what case did the Supreme Court held that, for purposes of the Fifth Amendment right against self-incrimination, an interrogation includes not only express questioning but also words or actions that the police should know are reasonably likely to elicit an incriminating response?

rhode island v Innis

money laundering

techniques to disguise the true source of money. -"Dirty money" -The basic idea is to "launder" dirty money obtained from illegal activities and make it clean money by running it through legitimate business enterprises.

mistake of fact

the defendant asserts that she acted from an innocent misunderstanding of fact rather than from a criminal intent to commit the crime in question. -If the jury believes this defense claim, the defendant did not possess the necessary mens rea (mental intent) to commit the crime. -This belief might serve to negate the criminal intent necessary to be convicted of the crime of receiving stolen property. -Question of fact to be determined by the fact finder

mistake of law

the defendant states that he failed to understand the criminal consequences of his conduct. -generally not as effective as a "mistake of fact" defense. -mistaken belief about a particular law is no defense to a violation of that law. -All persons are presumed to know and understand the law.

appeal

the final step in a civil or criminal case. It represents a challenge to the decision of a court -asks a higher court to review and reconsider the decision of a lower court. -in a civil case, either party (plaintiff or defendant) may appeal the decision of a court. While the defendant may appeal the verdict (the decision of the jury) in a criminal case, the prosecution may not appeal the verdict if the jury finds the defendant not guilty.

arraignment

the initial step in a criminal prosecution whereby the defendant is brought before the court to hear the charges and to enter a plea. -Occurs after the defendant receives an information or grand jury indictment -may also be the proceeding at which the court determines whether to set bail for the defendant or release the defendant on his or her own recognizance. -6th amendment guarantees that defendants will "be informed of the nature and cause of the accusation against them."

Foreign Corrupt Practices Act (FCPA)

the main statute in the US prohibiting overseas bribery payments -Enacted in 1977 but amended in 1988 -prohibits -(1) giving, offering, or promising payments -(2) by a U.S. company (or a non-U.S. company that is controlled by a U.S. company) -(3) to a foreign government official or a foreign political party -(4) for the purpose of improperly influencing government decisions in order to obtain or keep business. -Prohibited payments include payments to foreign officials, including government officers and employees as well as individuals who work for public international organizations, such as the United Nations. -Prohibits payment to political candidates -Companies can ensure a strong internal compliance and ethics program, including the practice of aggressive due diligence, risk assessment, a code of ethics that prohibits bribery, and Manager's Compliance and Ethics Meetings to explain the FCPA -Managers should encourage employees to seek legal counsel in cases of doubt and take quick and thoughtful action if bribery is detected. -company should maintain a no-tolerance attitude regarding bribery throughout the company.

What happens if the prosecution proves one of the elements of a crime (for example, the mens rea) but fails to prove the other (the actus reus)?

there is no crime, unless it is a strict liability crime.

What are the different level of the police?

town and city police officers handle law enforcement at the local level. At the county level, the sheriff's office usually administers law enforcement, while state police troopers (sometimes called rangers) oversee law enforcement operations for each of the 50 states. At the federal level, highly specialized agents handle law enforcement for the nation. For example, FBI special agents, IRS special agents, and other federal law enforcement officials work individually or collaboratively to respond to a variety of federal crimes, including mail fraud, securities fraud, bribery, extortion, tax evasion, and environmental crimes. For purposes of this discussion, we will focus on law enforcement at the federal level. As part of the discussion, the terms law-enforcement official, police, and federal agent are used interchangeably.

summary judgment

when the court determines that a person does not have standing and does not have sufficient enough info for case -More than 90% of cases are settled outside of court

probable cause hearing

within some criminal justice systems, a preliminary hearing, preliminary examination, evidentiary hearing or probable cause hearing is a proceeding, after a criminal complaint has been filed by the prosecutor, to determine whether there is enough evidence to require a trial

Who is harmed by bribery and how?: Bribery from an ethical perspective

▪ Corporate directors are fiduciaries who act on behalf of the stockholders and, in addition to making the company profitable and eventually issuing dividends, they have an ethical obligation to "do no harm" to the business, including tolerating illegal and unethical business practices leading to adverse publicity and paying fines for criminal behavior. ▪ Regardless of adverse publicity to the corporation, Kant's categorical imperatives demand a duty of ethical behavior irrespective of the consequences. Kant could argue if all companies paid bribes to get business, international trade would eventually be a disaster. ▪ Aristotle's virtue ethics would find bribery a violation of justice and an unfair practice benefiting big business over small companies. ▪ Rawls's Democratic Equality Principle states: "Social and economic inequalities are to be arranged so that they are attached to offices and positions open to all under conditions of fair equality of opportunity." Rawls's principle would be violated by bribing foreign officials because it provides for an "economic inequality" in the international marketplace.

Who is harmed by bribery and how?: Bribery from a political and societal perspective

▪ Deflates morale among the citizenry and encourages people to think that the government and the judicial system are indifferent or incompetent ▪ Weakens a government's credibility at home and abroad ▪ Suggests to citizens that rule-breaking in other areas is permissible, fostering a culture of corruption ▪ Can negatively affect a country or region's safety and security ▪ Pits wealthier classes against poorer ones ▪ Encourages and helps sustain poverty, hunger, disease, and crime

Who is harmed by bribery and how?: Bribery from an economic and business perspective

▪ Discourages competition and creates barriers that prevent other companies from entering the market ▪ Introduces inefficiencies in markets, slows industry growth, and slows economic expansion overall ▪ Places legitimate, honest competitors and small companies at a disadvantage ▪ Drives the proceeds of illegal transactions to foreign accounts, causing capital flight (since the proceeds of corrupt payments are often transferred abroad), thereby preventing money from being used in productive ways ▪ Harms consumers because products and services are more likely to be substandard and costlier ▪ Causes uncertainty and lack of confidence in markets because shareholders are unsure how their invested money is spent or believe it is spent unwisely