BLAW chp 6
Criminal procedure
Pretrial procedure: The arrest, booking, first appearance, indictment, and arraignment. Trial procedure: Jury selection, trial with burden of proof on prosecution, jury deliberations, jury verdict, and (if guilty) sentencing hearing. Posttrial procedure: Appeal
Tools for fighting business crime
RICO, False Claims Act, Sarbanes-Oxley Act
Arrest
The action in which a police officer or a person acting under the law takes a person into custody.
Racketeer Influenced and Corrupt Organizations (RICO) Act
A U.S. law that provides extended penalties for criminal acts performed as part of an ongoing criminal organization.
False Claims Act of
An act that allows employees to sue employers on behalf of the federal government for fraud against the government. The employee retains a share of the recovery as a reward for his or her efforts.
Sarbanes-Oxley Act
An act that criminalizes specific nonaudit services when provided by a registered accounting firm to an audit client; also increases the punishment for a number of white-collar offenses. Also known as the Public Company Accounting Reform and Investor Protection Act of 2002.
Plea bargain
An agreement in which the prosecutor agrees to reduce charges, drop charges, or recommend a certain sentence if the defendant pleads guilty.
Corporate criminal liability
Both corporations, as legal entities, and the corporate officers and managers can be held liable for crimes committed on behalf of the corporation.
difference between briberly and extortion
Whereas bribery is offering someone something to obtain a desired result, extortion involves the threat of doing something if the target of the extortion does not relinquish money or a specific piece of property.
White collar crimes
bribery, extortion, fraud, embezzlement, computer crimes
virus
computer program that rearranges, damages, destroys, or replaces computer data.
Actus Reus
guilty act wrongful behavior that is associated with the physical act of a declared crime.
other types of fraud
health care fraud, telemarketing fraud, and bankruptcy fraud.
Defendent is reckless
if a criminal act occurs when the individual consciously ignores substantial risk. Drinking and driving is a common example of a reckless crime.
defendant is negligent
if he or she does not meet a standard of care that the reasonable person would use in the context that led to the criminal act. For example, a parent leaving his children in a hot car while the parent is having a good time at a bar would acting criminally negligent.
Affirmative defenses to crimes
infancy, mistake of fact, intoxication, insanity, duress, entrapment, necessity, justifiable use of force
Bail
is the amount of money defendants pay to the court on release from custody as security that they will return for trial.
briberly
is the offering, giving, soliciting, or receiving of money or any object of value for the purpose of influencing the judgment or conduct of a person in a position of trust.
purpose of criminal law
is to punish an offender for causing harm to public health, safety, or morals. In a criminal proceeding, the government files the charges against the defendant. Thus, the government is always a party to a criminal action.
Another type of bribery is commercial bribery
which includes a bribe in exchange for new information or payoffs. For example, suppose Comdac Computers is looking for a company that manufactures a certain type of computer part. Jane Devlon owns such a company and realizes that if Comdac gets the computer parts from her, she will potentially make a lot of money. When Comdac sends its contractor to the Devlon factory, Devlon offers the contractor $500,000 in exchange for the contractor's promise that Comdac will buy all such parts from only her factory for the next year. Alternatively, she might offer the contractor $5,000 to disclose the dollar amounts of the competing bids so that she can offer a better bid to earn the contract.
For example, improper disposal of chemicals, such as dumping chemicals in a stream, has long-term repercussions for marine life, the surrounding ecosystem, and any humans who may come in contact with the contaminated water source.
white collar crime
Mail fraud, bribery, embezzlement, and computer crimes are examples of offenses typically classified as
white collar crime
forgery
the fraudulent making or altering of any writing in a way that changes the legal rights and liabilities of another, is another type of fraud. If you sign your colleague's name to the back of a check made out to your colleague, you have committed forgery.
To prove the first element, actus reus (guilty act)
the government must establish the nonmental elements of the crime. That is, the government must demonstrate that a prohibited act or a prohibited consequence resulted because of the behavior of the defendant.
To prove the second element, mens rea (guilty state of mind),
the government must prove that the defendant acted with the state of mind required by the law defining the relevant offense. The state of mind required by an offense may be purposeful, knowing, reckless, or negligent. The defendant's type of wrongful state of mind helps determine the seriousness of the punishment for the crime.
embelzzlement
the wrongful conversion of another's property by one who is lawfully in possession of that property.
Bench trail
trial before a judge, with the judgment decided by the judge rather than a jury; occurs when the defendant has waived his or her right to a jury trial.
hacker
person who illegally accesses or enters another person's or a company's computer system to obtain information or to steal money.
nolo contendere
plea in which the defendant does not admit guilt but agrees not to contest the charges. The advantage of a nolo contendere plea over a guilty plea is that the former cannot be used against the defendant in a civil suit.
Miranda right
"You have the right to remain silent and refuse to answer any questions." "Anything you say may be used against you in a court of law." "You have the right to consult an attorney before speaking to the police and have an attorney present during any questioning now or in the future." "If you cannot afford an attorney, one will be appointed for you before the questioning begins." "If you do not have an attorney available, you have the right to remain silent until you have had an opportunity to consult with one." "Now that I have advised you of your rights, are you willing to answer any questions without an attorney present?
3 elements of fraud
(1) a material false representation made with intent to deceive (scienter), (2) a victim's reasonable reliance on the false representation, and (3) damages. Both the federal and the state governments have passed a number of statutes codifying specific types of fraudulent schemes.
computer crimes
(1) is directed against computers, (2) uses computers to commit a crime, or (3) involves computers. Computer crime is not necessarily a new kind of crime but is, instead, a new way of committing traditional crimes.
To demonstrate bribery under this statute, the government must show three elements:
(1) something of value was offered, given, or promised to; (2) a federal public official with; (3) intent to influence that person's judgment or conduct. The "thing of value" element has been construed very liberally; actual commercial value is not necessary.
employers can be held criminaly accountable
(1) the employee was acting within the scope of her or his employment; (2) the employee was acting with the purpose of benefiting the corporation; and (3) the act was imputed to the corporation.
Steps in a criminal procedure
1.Arrest 2. Booking 3. First appearance 4. Arraignment Trial Appeal n
Misdemeanor
A crime that is less serious than a felony and is punishable by a fine and/or imprisonment for less than one year.
extortion
A criminal offense in which a person obtains money, property, and/or services from another by wrongfully threatening or inflicting harm on the other's person, property, or reputation. Also called blackmail.
Information
A document, prepared by the prosecutor and presented to the magistrate, which demonstrates that there is enough evidence to charge the defendant and bring him or her to trial.
cyber terriost
A hacker whose intention is the exploitation of a target computer or network to create a serious impact, such as the crippling of a communications network or the sabotage of a business or organization, which may have an impact on millions of citizens if the terrorist's attack is successful.
Strick Liability
A legal term that imposes responsibility for damages regardless of the existence of negligence. Also called strict liability.
libality without fault
A legal term that imposes responsibility for damages regardless of the existence of negligence. Also called strict liability.
felony
A serious crime, such as murder, rape, or robbery, that is punishable by imprisonment for more than one year or by death.
white collar crime
A variety of nonviolent illegal acts against society that occur most frequently in the business context.
The nature and elements of crimes
Actus reus, mens rea,
Embezzlement is distinguished from larceny because
Embezzlement is distinguished from larceny because the individual did not take the property from another; he was already in possession of the property.
Indictment
Finding by the grand jury that there is adequate evidence to charge the defendant and bring him or her to trial.
misdemnor
For a misdemeanor, the prosecutor must present to the magistrate evidence sufficient to justify prosecution of the defendant.
defendant can purposefully commit a crime by engaging in a specific wrongful behavior to bring about a specific wrongful result.
For example, a person who robs a bank at gunpoint to unlawfully gain money is acting purposely. A defendant can knowingly commit a wrongful act if the person knows the act is wrongful or believes that the act is wrongful yet does nothing to confirm or disconfirm this belief. The distinction between purposely and knowingly committing a crime can be subtle, but still distinct.
False claims act example
For example, an employee in a health care facility might realize that his employer is submitting fraudulent claims to Medicare. The employee can bring a suit against the employer on behalf of the government for fraud against the government.
defendant can purposefully commit a crime by engaging in a specific wrongful behavior to bring about a specific wrongful result.
For example, say a person wants to murder an enemy by blowing up the office building in which his enemy works. The perpetrator is aware that this act will likely kill other people in the building but does not care. The perpetrator would be purposely murdering his enemy but knowingly murdering the other people in the building.
mens rae
Latin for "guilty mind;" the mental state accompanying a wrongful behavior.
Burden of proof
The duty of the plaintiff or prosecution to establish a claim or allegation by admissible evidence and to prove that the defendant committed all the essential elements of the crime to the jury's or court's satisfaction beyond any reasonable doubt, in order to convict the defendant.
Arraignment
The first appearance in court by the defendant, at which the defendant is advised of the pending charges, the right to counsel, and the right to trial by jury and he or she enters a plea to the charge.
insider trading
The illegal buying or selling of a corporation's stock or other securities by corporate insiders, such as officers and directors, in breach of a fiduciary duty or some other relationship of trust and confidence, while in possession of material, nonpublic information about the security.
false pretense
The illegal obtaining of another's property by making a materially false representation of an existing fact, with knowledge of the falsity of the representation and with the intent to defraud.
First Appearance
The initial appearance of an arrested individual before a judge who determines whether there was probable cause for the arrest. If the judge ascertains that probable cause did not exist, the individual is freed.
vicarious liability
The liability or responsibility imposed on a person, a party, or an organization for damages caused by another; most commonly used in relation to employment, with the employer held vicariously liable for damages caused by its employees.
bribery is the bribery of foreign officials
The purpose of the Foreign Corrupt Practices Act (FCPA) is to combat such bribery. The FCPA prohibits payments to foreign officials to influence an official act or decision corruptly or to influence a foreign government.
purpose of briberly
The purpose of this law against bribery is to maintain the integrity of the government.
Miranda Rights
The rights that are read to an arrested individual by a law enforcement agent before the individual is questioned about the commission of a crime.
Booking
a procedure during which the name of the defendant and the alleged crime are recorded in the investigating agency's or police department's records.
fraud
encompasses a variety of means by which an individual intentionally uses some sort of misrepresentation to gain an advantage over another person.
3 categories of crimes
felony, misdemeanor, petty offense
petty offense
minor crime that is punishable by a small fine and/or imprisonment for less than six months in a jail.
