Business law Ch 6 Criminal Law

appeals

As in civil cases, the defendant, now convicted, has the right to take at least one appeal to higher courts, where issues of procedure and constitutional rights may be argued.

Exclusionary rule

But it remains generally true that the prosecutor may not use evidence willfully taken by the police in violation of constitutional rights generally, and most often in the violation of Fourth Amendment rights. (The fruits of a coerced confession are also excluded.)

How are crimes defined

Crimes are defined through state legislature and statutes

What are key takeaways? 6.1

Crimes are usually defined by statute and consistent an offense against society. In each case, there must be both an act and some mens rea (criminal intent),.

Mistake of Law

Ignorance of the law is not an excuse; if you were told something by a government official or by a lawyer then you are fine.

Excuses that limit or overcome responsibility: Mistake of Fact

In general, the rule is that a mistaken belief of fact will excuse criminal responsibility if (1) the belief is honestly held, (2) it is reasonable to hold it, and (3) the act would not have been criminal if the facts were as the accused supposed them to have been.

Lack of Mental capacity

Infants and children are considered incapable of committing a crime; under common law any child under the age of seven could not be prosecuted for any act. Some mental diseases and intoxication.

Attempt

It is not necessary to commit the intended crime to be found guilty of a criminal offense. An attempt to commit the crime is punishable as well, though usually not as severely. He has to pass the stage of preparation, then if he has taken a step toward perpetration then the crime is hard to understand.

False Pretenses Case

State v. Mills - not a theft by false pretenses case because the defendant fully intended to repay they loan therefore it was not permanently stolen.

Cruel and Unusual Punishment

The Eighth Amendment banned these actions with the words that "cruel and unusual punishments [shall not be] inflicted." Of course, no corporation is on death row, and no corporation's charter has ever been revoked by a US state, even though some corporations have repeatedly been indicted and convicted of criminal offenses.

Self-Incrimination

The Fifth Amendment is also the source of a person's right against self-incrimination (no person "shall be compelled in any criminal case to be a witness against himself"). In broadest outline, the right against self-incrimination means that the prosecutor may not call a defendant to the witness stand during trial and may not comment to the jury on the defendant's failure to take the stand.

Double Jeopardy

The Fifth Amendment prohibits the government from prosecuting a person twice for the same offense. The amendment says that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb.

Cross-Examination

The Sixth Amendment also says that the defendant shall have the right to confront witnesses against him. No testimony is permitted to be shown to the jury unless the person making it is present and subject to cross-examination by the defendant's counsel.

Assistance of Counsel

The Sixth Amendment guarantees criminal defendants the right to have the assistance of defense counsel. The right to counsel is much broader in this country, as the result of Supreme Court decisions that require the state to pay for a lawyer for indigent defendants in most criminal cases.

Speedy Trial

The Sixth Amendment tells the government that it must try defendants speedily. In 1975, Congress enacted the Speedy Trial Act, It requires all criminal prosecutions to go to trial within seventy-five days (though the law lists many permissible reasons for delay).

Violations of Food and Drug Act

The federal Food, Drug, and Cosmetic Act prohibits any person or corporation from sending into interstate commerce any adulterated or misbranded food, drug, cosmetics, or related device.

Presumption of Innocence

The most important constitutional right in the US criminal justice system is the presumption of innocence. The Fifth Amendment notes the right of "due process" in federal proceedings, and the Fourteenth Amendment requires that each state provide "due process" to defendants.

Entrapment

The police are permitted to use such techniques to detect criminal activity; they are not permitted to do so to instigate crime.

Other Excuses

These include compulsion (a gun pointed at one's head by a masked man who apparently is unafraid to use the weapon and who demands that you help him rob a store), honest consent of the "victim" (the quarterback who is tackled), adherence to the requirements of legitimate public authority lawfully exercised (a policeman directs a towing company to remove a car parked in a tow-away zone), the proper exercise of domestic authority (a parent may spank a child, within limits), and defense of self, others, property, and habitation.

Conspiracy

Under both federal and state laws, it is a separate offense to work with others toward the commission of a crime. When two or more people combine to carry out an unlawful purpose, they are engaged in a conspiracy. Usually, the prosecution needs to show only (1) an agreement and (2) a single overt act in furtherance of the conspiracy.

White-Collar Crimes Case

United States v. Park - even though Park did not have criminal intent to put food in a contaminated warehouse and he was not the one responsible for actually cleaning it; he is still charged with the offense because he needs ensure the acts of those under him.

felony

a crime punishable (usually) by imprisonment of more than one year or by death. such as murder, rape, kidnapping, armed robbery, embezzlement, insider trading, fraud, and racketeering.

Information

a document stating the crime of which the person being held is accused

State v. Mills case

a problem that arose form the false-pretense statutes

Insider Trading

a type of securities fraud where profits are made from a decision to but or sell stock based on nonpublic information

Two elements required of crim

actus rea (wrongful act) and mens rea (intention or state of mind to commit a wrongful act)

Misdemeanors

all other crimes. such as petty offenses and infractions

Assult

an ATTEMPT to commit a battery or the deliberate placing of another in fear of receiving an immediate battery.

Manslaughter

an act of killing that does not amount to murder; an intentional killing carried out in the "sudden heat of passion"

Violations of federal law

any act of fraud in which the US postal system is used or which involves interstate phone calls or Internet connections.

Fraud

anyone who uses the mails or telephone to defraud anyone else of virtually anything, not just of money.

embezzlement

assuming ownership; it has men mad an statutory offense

Crimes

based on statutory law and differs between states as well as the penalty

grand jury

consists of twenty-three people who sit to determine whether there is sufficient evidence to warrant prosecution

"Knowledge"

construed broadly: not merely actual knowledge, but (correct) belief and suspicion (strong enough not to investigate for fear that the property will turn out to have been stolen) are sufficient for conviction.

Critical distinction between criminal and civil law

crime is an act that he legislature had defined as socially harmful, therefore if a barroom brawl ensues then the authorities have to decide if they want to prosecute.

excusable homicide

death results from an accident in which the killer is not at fault

Criminal Law

enforced by government prosecutors who are enforcing the law to make our entire community safer. Although both criminal law and civil law violations can result in a fine or penalty, only a conviction or guilty plea in a criminal case can result in jail time.

Computer Crime

falls under four categories: (1) theft of money, financial instruments, or property; (2) misappropriation of computer time; (3) theft of programs; and (4) illegal acquisition of information.

Forgery

false writing of a document of legal significance with intent to defraud. Includes alterations or false documents

After hearing, prosecutor must do either

file an informaiton or aske the grand jury for an indictment

Embezzlement

generally taking the money of a business and using it for personal benefit without permission of the business

Fraud

generally the use of false promises to deceive a customer into making a purchase or giving money to a business for which the customer gets nothing of value in return

murder

homicide committed with "malice aforethought" ie intent to kill

Foreign Corrupt Practices Act

imposed a stringent requirement that the disposition of assets be accurately and fairly accounted for in a company's books and records. The act also made illegal the payment of bribes to foreign officials or to anyone who will transmit the money to a foreign official to assist the payer (the one offering and delivering the money) in getting business.

what a crime consists of

it is an ac defiend as criminal - an actus reus - and the requiste "criminal intent".

felony murder rule

killing that takes place while a felony is committed is also murder even if there was no intent for harm

Robbery

larceny from a person by means of violence or intimidation

Impossibility

many states have ruled out factual impossibility because mens rea or criminal intent was there. Legal impossibility is different. if the defendant completes all of his intended acts, but those acts do not fulfill all the required elements of a crime, there could be a successful "impossibility" defense.

Cybercrime

may involve a security breach, where customers private information is stolen for the purpose of committing identity theft

Ex post facto laws

means "after the fact" and they are laws used to punish an act that was legal at the time.

mens rea

means guilty mind; a desire to commit a crime

Bribery (lesson)

my involve giving money to a government official for the purpose of obtaining a permit approval, or to pass a safety inspection

Offenses against Habitation and Other offenses: Buglary

not a crime against property; "the breaking and entering of the dwelling of another in the nighttime with intent to commit a felony" - the intent to steal is not an issue

false pretenses

obtaining ownership of property of another by making untrue representations of fact with intent to defraud

White-Collar crime

refers generally to fraud-related acts carried out in a nonviolent way, usually connected with business. Most are violations of state law; depending on how they are carried out they can violate federal laws

justifiable homicide

soldier killing an enemy on the battlefield during war, or killing in self-defense

"ignorance of the law is no excuse"

that society gets to decide what is harmful to society

Offenses against Property: larceny

the basic crime of stealing personal property

Perjury

the crime of giving a false oath, written or oral, in a judicial or other official proceedings. -it has to have been made with the knowledge or sincere belief that it was false.

Indictment

the grand jury's formal declaration of charges on which the accused will be tried

Offenses against the Person: Homocide

the killing of one person by another

Offenses against a Person: Battery

the unlawful application of force to another person without consent

blackmail threat

to expose some fact of the victim's private life or to make a false accusation about him.

Extortion

under common law it could only be committed by a government official, who corruptly collected an unlawful fee under color of office. Under modern statutes, it has been broadened to include the wrongful collection of money or something else of value by anyone by means of a threat (blackmailish)

Arson

under common law, the malicious burning of the dwelling of another. Statutes today, a felony to intentionally set fire to any building, whether it is a dwelling or not.

Receiving stolen property

with knowledge that property is stolen could be a felony depending on the value of the property.

Procedures

A criminal case begins with an arrest if the defendant is caught in the act or fleeing from the scene; if the defendant is not caught, a warrant for the defendant's arrest will issue. The warrant is issued by a judge or a magistrate upon receiving a complaint detailing the charge of a specific crime against the accused. She must supply enough information to satisfy the magistrate that there is probable cause (reasonable grounds) to believe that the accused committed the crime. The warrant will be issued to any officer or agency that has power to arrest the accused with warrant in hand. The accused will be brought before the magistrate for a preliminary hearing. The purpose of the hearing is to determine whether there is sufficient reason to hold the accused for trial. If so, the accused can be sent to jail or be permitted to make bail. Bail is a sum of money paid to the court to secure the defendant's attendance at trial. If he fails to appear, he forfeits the money. Constitutionally, bail can be withheld only if there is reason to believe that the accused will flee the jurisdiction. Once the arrest is made, the case is in the hands of the prosecutor. In the fifty states, prosecution is a function of the district attorney's office. These offices are usually organized on a county-by-county basis. In the federal system, criminal prosecution is handled by the office of the US attorney, one of whom is appointed for every federal district.

Agency and Corperations

A person can be guilty of a crime if he acts through another. Since intent is a necessary component of crime, an agent's intent cannot be imputed to his principal if the principal did not share the intent.

Bribery

a corrupt payment (or receipt of such a payment) for official action. - cash or otherwise. Under common law, only a public official could be bribed.