Law Test 2
What is entrapment?
A law-enforcement officer's inducement of a person to commit a crime, by fraud or undue persuasion, in an attempt to bring a criminal prosecution against that person. It provides an affirmative defense that the crime would not have been committed but for the set up.
exculpatory clause
A part of a contract that releases one of the parties from liability for their wrongdoings; not favored at laws.
Define racketeering.
A pattern of illegal activity, such as bribery, that is part of an operation owned or controlled by those engaged in the illegal activity. RICO extends to to include activities such as mail fraud and securities frauds.
What does a persons punishment depend on?
A persons punishment depends on the category under which a person is convicted. --Some crimes are punishable by death. -Imprisonment/fines -Unable to own a firearm -removal from public office -disqualified from holding office or voting
substantial factor test
A standard adopted in several states in place of proximate cause; a jury may hold a defendant liable in tort if it finds that defendant's conduct was a major cause of the injury in question
What is the statute of limitations?
A statute setting maximum time periods from the occurrence of an event, during which certain actions can be brought or rights enforced, If an action is not filed before the expiration of that time period, the statute bars the use of the courts for recovery.
What is the Pasquantino vs. U.S. case?
American bought liquor in the U.S. and smuggled it into Canada for resale, avoiding high Canadian taxes. Since electronic communications were used that originated in the U.S., two people sent to prison for 5 years each.
Define mail fraud.
An act of fraud using the postal service, as in making false representations through the mail to exploit another party.
tortfeaser
An individual or business that commits a tort.
Tort
An injury or wrong committed with or without force against another person or his properly; a civil wrong that is a breach of a legal duty owed by the person who commits the tort to the victim of the tort.
Who decides who will be charged with a crime?
Government agencies. -They tie in probable cause for arrest and reasonable doubt for trial. -Then the prosecutors receive reports of alleged crime, and results of investigation. Prosecutors then decide whether to bring the charges. -Not all claims of criminal activity are investigated. -Politics and personal preference may come into play in decisions by prosecutors. -The process is NOT perfect.
Describe the government fraud area of white collar crime.
Governs contracts with public agencies -Billing for goods not delivered -Double billing -Inferior goods -Government payment programs: Farm subsidies, public housing, educational programs
What does the fifth amendment say about constitutional rights?
Miranda rights must be read if a person is accused of or held in suspicion of a crime. -A person accused of a crime, or held in suspicion of a crime, must be informed of their right to remain silent, as provided by the Fifth Amendment, of their right to be represented by council and that statements they make can be used as evidence against them.
Describe embezzlement area of white collar crime.
Person in position of trust takes money or property for his/her own use. -BOOK DEF: Statutory offense when a person fraudulently appropriates for her own use the property or money entrusted to her by another.
Describe the bankruptcy fraud area of white collar crime.
Person or corporation hides or lies about assets in bankruptcy proceeding. (also applies to creditors giving false information or illegal pressure to bankruptcy petitioners)
Describe insider trading area of white collar crime.
Person trades a security while in possession of material, non-public information.
Describe the financial fraud area of white collar crime.
Regulation of banks and financial institutions -Firms and employees subject to criminal liability -Fraud in loans, financial documents, mortgages, etc.
intervening conduct
in tort, an independent cause that comes between the original wrongful act and the injury that relieves liability that would otherwise exist for the original act; a legal break in the casual connection. -BOOK EX: if workers don't cover a ditch, but Lady Gaga shoves Jay Z in the ditch, the workers are not responsible because Gaga was an intervening conduct that relieves the workers of liability -if there is an intervening or superseding event/conduct -- no liability
Define torts.
The word tort derived from Latin tortus or "twisted" -- means "wrong" in French. -Civil wrong, other than a breach of contract, for which the law provides a remedy -Generally defined as a civil wrong, other than a breach of contract for which the law provides a remedy. -Breach of duty owed to another that causes harm. -Arises from careless errors or intentional actions -Law reflects social values and community standards -Lawsuits involving businesses often have large awards, i.e. Pennzoil-Texaco case: Jury awarded $10.5 billion to the plaintiff. -Has become a major issue for businesses why? Deep pockets, high damages.
Describe economic espionage area of white collar crime.
Theft or misappropriation of valuable business information, such as a trade secret. BOOK DEF: When commercial trade secrets are stolen for use by a competitor, this is specifically in violation of federal law. Can be fined not more than 500,000 or imprisoned not more than 15 years or both.
danger-invites-rescue doctrine
the principle that a torfeasor who is liable for endangering a person is also liable for injuries to someone who reasonably attempted to rescue the person in danger.
Define warrant.
A judicial authorization for the performance of an act that would otherwise be illegal. -Are usually needed for search of property, persons, or seizure of property. -Warrants are issued by the JUDGE or MAGISTRATE.
Describe the healthcare fraud area of white collar crime.
Over-billing and scams by hospitals, doctors, ambulance services, laboratories, pharmacies, extended care facilities. 1 in every 6 dollars in the United States is spent on healthcare.
What are the major areas of white-collar crime that can result in criminal convictions?
1. Antitrust 2. Bankruptcy fraud 3. Bribery 4. Counterfeiting 5. Credit card fraud 6. Computer and internet fraud 7. Economic espionage 8. Embezzlement 9. Environmental Law Violations 10. Financial fraud 11. Insurance fraud 12. Mail fraud 13. Money laundering 14. Telephone and telemarketing fraud 15. Fraud on the internet 16. Wire fraud 17. healthcare 18. insider trading 19. tax evasion
omission
A failure to do something, especially a neglect of duty; leaving something out that may be critical to a decision. -A person who runs over another person while driving intentionally has committed the intentional tort of battery. A person who unintentionally runs over another while driving carelessly has committed a tort of battery based on negligence.
causation
The causing or producing of an effect; in law, something that may be related to legal consequences. Causation: between a party's act and another's injury.
Define sentencing guidelines.
A federal statue that provides detailed instructions for judges to determine appropriate sentences for federal crimes; it includes factors such as the nature of the crime and the history of the defendant.
What is criminal negligence?
-A degree of carelessness amounting to a culpable disregard of rights and safety of others. -Criminal conduct that is not intentional, but occurred because one failed to act with reasonable care what is expected under the circumstances. EX: if someone gets drunk and drives the wrong way down a highway and kills a person in an accident, there may be guilt for negligent homicide or man slaughter. (There was no intent to kill the person who was the victim, but the act showed disregard for the safety of others and violated the obligation to be prudent).
What is crime?
-A violation of the law that is punishable by the state or nation; classified as felonies or misdemeanors. -A positive or negative act that violates a penal law -- that is, an act against a state or federal government or even local government. -Governments determine punishments. (statutes) -A crime is NOT a civil law
What is the United States vs. Allmendinger case?
-Allmendinger, Oncale and others ran investment scam. -$100 million losses on 800 investors -Misrepresented what they were selling; pocketed lots of cash rather than investing it -When federal investigators began to poke around, Allmendinger began to hide assets. -Ringleaders were indicted by grand jury: Mail Fraud, Money Laundering & Securities Fraud -Court ordered them to freeze all accounts. Allmendinger didn't; transferred more money to secret accounts. -After convictions, judge imposed sentences based on Sentencing Guideline measures. -Due to size of loss, lack of cooperation with investigators by Allmendinger, and hiding his money, he was given a 45-year sentence. -Oncale was given a 10-year sentence. -Appeals Court will consider whether district court committed significant procedural error in calculating guideline range and explaining sentence. If in error, sentence will be vacated and remanded for resentencing. If it did not, then appeals court will consider if sentence imposed was "substantively reasonable" under the "abuse of discretion" standard. -Allmendinger was similarly situated to co-conspirator Oncale in approach to them by government, but were different in their responses to the government investigations. -District court gave lengthy explanation for the sentence imposed and reasons for selecting sentence it did. Oncale was confronted by the gov't early in the investigation. Admitted culpability and immediately agreed to plead guilty. He liquidated his assets; gave them to the govt. and cooperated extensively Allmendinger refused to accept responsibility for his actions. Hid cash in violation of restraining order, lived lavish lifestyle with the money, oney in violation of the restraining order, attempted to flee right before the trial. -HELD: No error in Allmendinger's convictions and sentence
Cyberlaw -- your laptop is an open book
-Arnold arrived at LA International Airport from the Philippines -U.S. Customs officer asked him to turn on his laptop -One icon said "Kodak Pictures" -Officer opened folder; found child pornography -Arnold was indicted for felony of transporting child pornography -He protested that evidence was improperly obtained -Federal Appeals Court HELD: Evidence could be used -"Reasonable suspicion" is not needed for customs officers to search laptops -Two executives from BAE Systems (large British defense & aerospace company) handed laptops seized at the border -All data was copied from them -Justice Dept. said action was consistent with its intensified investigations into foreign corrupt payments -Individuals were not under suspicion -Government simply wanted to see info. on the computers -Similar rules apply to smart phones and electronic devises in international business travel
What is indictment?
A formal written charge issued by a grand jury asserting that the name person has committed a crime.
Describe sentencing guidelines and compliance?
-Controversial aspect of federal criminal law -Congress mandated that courts be given clear rules about imposing sentences for criminal law violations. -Sentencing Commission created a list of factors to consider for each conviction. -Punishment is reduced under the Sentencing Guidelines when company has a program in place to ensure problems won't happen again. -DOJ has Guidelines for effective compliance programs. -Some companies have traditional accounting and financial reporting to audit committees. -Other companies hire an outsider to be on the compliance committee. -Companies have whistleblower hotlines to encourage anonymous tips. Some European countries, such as France, prohibit hotlines saying person accused of impropriety has right to know who complained. -Supreme Court HELD: Guidelines are advisory, not mandatory, for judges to use, but judges are expected follow them closely.
Describe the computer and internet fraud area of white collar crime.
-Credit card fraud involving a computer/internet -Unauthorized access to financial accounts -Unauthorized use of computers and computer files -Sabotage of computers
What is affirmative defense?
-Even if the prosecution's claims are true, other facts prevent the claims from constituting the crime. -Defendant's response to plaintiffs claim that attacks the plaintiffs legal rights to bring the action rather than attacking the truth of the claim. An example of an affirmative defense is the running of the statute of limitations.
What are the consequences for non-compliance?
-Failure to File suspicious activity report -Civil/criminal penalties, or both -Civil penalties - willful violation of reporting requirements -Civil penalties can be up to the greater of the amount involved in a transaction -Willful violations may lead to criminal penalties Fines up to $250,000 or 5 years in prison
What is the tax evasion area of white collar crime?
-Failure to file tax returns -Failure to report income -Overstatement of expenses -Not reporting illegal income -IRS devotes significant resources to track down violators -- jurisdiction can be international. EX: Swiss Bank Accounts
Describe environmental law violations area of white collar crime.
-Federal (EPA) and state laws -Data fraud cases. EX: private laboratories submit false environmental data -Hazardous waste dumping -Ocean dumping by cruise ships -Oil spills -International smuggling of CFC's -Illegal handling of hazardous substances (pesticides, asbestos, etc.) -EPA averages 300 criminal prosecutions per year -- 150-200 years of prison and jail time.
What is the securities fraud area of white collar crime?
-Insider trading -Market rigging -Theft from accounts of clients of securities firms
What is the internal fraud area of white collar crime?
-Many SMALL businesses do not know they are affected. -Studies show that 1/4 of companies with fewer than 100 employees suffered from check tampering where company checks used for improper purposes. -21% suffered from skimming -- when cash is taken before it is recorded on the books -Rigging payroll/Falsifying reimbursement expenses (i.e. travel) are common.
Describe defenses
-Raises doubts in jurors' minds through alibi -Presents other evidence that crime was not committed -Affirmative defenses: even if prosecution's claims are true, other facts prevent the claims from constituting the crime -Intoxication and insanity (rarely successful) -Improper procedure in the criminal prosecution -Statute of limitations runs (time varies by crime) -Action was justifiable. EX: Self defense with reasonable force -Self-defense in violent crimes cases (use of force justifiable to protect oneself against another) -Entrapment (law enforcement sets a trap to lure someone into committing a crime he/she had no intention of committing. This can be tricky as a defense.
What are AML or Anti-money laundering measures?
-Regulations making money laundering more difficult. -Soprano's banks must comply with federal regulations, reporting, etc. -Require financial organizations to use Know Your Customer (KYC) or Customer Due Diligence (CDD) Programs -Track it down: Tracing asset flows -- large cash transactions are suspect -Who is up to what?: Reporting suspicious transactions -- cash deposited over certain amounts (10,000$)
Describe the antitrust area of white collar crime.
-Violation under the Sherman Act and Clayton Act -Prison terms may be imposed on those involved in price fixing by competitors and certain other anti-competitive practices, and such terms can be as long as 10 years.
Describe evidence
-What the police rely on -Strict standards for gathering and presenting at trial. -It must be shown that the evidence was gathered, handled and presented properly. -- This is called the chain of custody.
What are the requirements for prosecution and conviction?
1. Actus reus: The guilty act 2. Mens rea: criminal intent
What two categories are crimes divided into?
1. Felony: more serious than a misdemeanor. A serious class of crime -- such as rape, murder, or robbery - that may be punishable by imprisonment in excess of one year or death. 2. Misdemeanor: A lessor crime that is neither a felony nor treason, punishable by a fine and/or imprisonment in other than state or federal penitentiaries. -States classify misdemeanors on there level of severity: Class A, B, C. -Felonies are also listed in classes such as A,B, and C or in degrees: first, second...etc. to denote the seriousness. -Violent crimes: murder, manslaughter -- physical force is used. -nonviolent crimes: vehicle theft, burglary -White collar crimes: embezzlement, bribery, fraud -Victimless crimes: possession of illegal drugs
Describe white collar crime.
A 1939 reputed origination of term: "Crime committed by a person of respectability and high social status in the course of his occupation." Today it means criminal activity for financial advantage occurring in business. FBI estimates such crimes create $1/3 trillion in losses each year Most cases are against individuals; corporations may also be prosecuted.
What is an alibi?
A claim or evidence provided that defendant was elsewhere when an act, typically a criminal one, is alleged to have taken place.
gross negligence
A conscious and voluntary disregard for the need to use reasonable care, likely to cause foreseeable injury -Likely to lead to punitive damages
comparative negligence
A defense to negligence whereby the plaintiffs damages are reduced by the proportion his fault bears to the total injury he has suffered.
Describe the Commonwealth vs. Angelo Todesca Corp.
A truck driver for the company Angelo Todesca killed a police officer directing traffic because the back-up horn was not working. The company was convicted and fined but the appeals court reversed the conviction bc commonwealth must prove the individual whose conduct was used to charge the corporation with a crime was placed in the position by the corporation. Because corporation is not a living person, can only act through its agents. To prove corporation is guilty of criminal offense must prove: 1. Individual committed a criminal offense 2. At the time of committing offense, person "was engaged in some particular corporate business" AND 3. Individual had authority to act for corporation on its behalf to carry out particular business when offenses occurred.
Consent
A voluntary agreement, implied or expressed, to submit to a proposition or act of another.
intentional tort
A wrong committed upon the person or property of another, where the actor is expressly or impliedly judged to have intended to commit the act that led to the injury -Person knew what he or she was doing -Intent to do the act which reasonably would result in harm to the plaintiff. -knew/should have known the possible consequences of an action -willful misconduct
false imprisonment
Also called false arrest; the intentional detention or restraint of an individual by another. -Intentional holding, detaining or confinement -Freedom to come and go is restrained -Restraint or confinement: May be physical or may be mental (through verbal threat) -Defense by businesses regarding detention of shoplifters -Restraint was in a reasonable manner -Restraint was in a reasonable time -Basis for the detention was valid
Emotional (mental) distress
Also called mental distress; a tort action for damages to compensate a person for mental injury suffered due to another's actions.
Define plea bargain.
Also called negotiated plea; a negotiated agreement between a prosecutor and a criminal defendant for the defendant to plead guilty to a lesser offense or to only one of multiple charges in exchange offense or to only one of multiple charges in exchange for concession such lighter sentence or a dismissal of the other charges.
defamation
An intentional false communication, either published or publicly spoken, that injures another persons reputation or good name. -Slander is spoken defamation -Libel is written or television broadcast defamation -ELEMENTS OF THE TORT: 1. False or defamatory statement 2. Published or communicated to a third person 3. Causing harm or injury to the plaintiff 4. If person who has false statement said TO THEM, then tells a 3rd party: "self publication" and no tort.
cause in fact
An or omission without which an event would not have occurred. Courts express this in the form of a rule commonly referred o as the "but for" rule: the injury to a person would not have happened for the conduct of the wrongdoer.
What is the telephone and telemarketing fraud area of white collar crime?
Any scheme to defraud using the telephone as means of communication with victims. -Trying to persuade them to send money to scheme -Solicits people to buy goods and services, invest money or donate to bogus charitable causes fraud on the internet is essentially the same as telephone and telemarketing fraud. (chat rooms, e-mail, message boards or web sites presenting fraudulent solicitations to victims)
assault
Any word or action intended to cause another to be in fear of immediate physical harm. -INTENT to act to cause a harmful or offensive contact. -Plaintiff has imminent apprehension or fear. -Fear: if a reasonable person under the same or similar circumstances would have apprehension of bodily harm or offensive contact EX: Threats? usually an assault Pointing a gun: yes Pointing a gun while the other person sleeps: no assault Letter threats: usually no assault phone threats: maybe. How close is the caller? -touching is not necessary with an assault -pointing a gun or swinging a bat can constitute as an assault
contributory negligence
As a complete defense to negligence, an act or a failure to act that produces a lack of reasonable care on the part of the plaintiff that is the proximate cause of the injury occurred.
Describe the wire fraud area of white collar crime.
BOOK DEF: Fraud involving the use of electronic communications, such as by making false representations on the telephone or internet to obtain money. The Federal Wire fraud Acts holds that any fraud by wire or other electronic communications such as radio or television in foreign or interstate commerce is a crime. -Any electronic communication involved in illegal activities. (much like mail fraud and telephone/internet fraud -Traditionally would have been subjected to only state prosecution but now there is basis for federal prosecution -There is a sweeping nature to the statutes seen in cases -includes a scheme or artifice to deprive another of the right to honest services. -Refers to bribery or kickbacks, not rather vague failure to provide "honest services"
Describe the discovery stage.
Civil law purpose: to reduce surprises, both sides must turn over anything requested by another side. Criminal law purpose: parties do their own investigations and disclose only a subset of what is found to the other side prior to the trial Law enforcement may be conducting an investigation that the defendant knows nothing about Under the constitution the prosecution must disclose any exculpatory evidence -- evidence which might show the defendant is not guilty. The choice to disclose left up to prosecutions lawyers. Defendant in criminal case has no obligation to disclose to prosecution evidence showing guilt -- 5th amendment protects defendants Before criminal trial, prosecution and defense exchange witness and exhibits lists.
Assumption of risk
Common-law doctrine under which a plaintiff may not recover for the injuries or damages that result from an activity in which the plaintiff willingly participated. A defense used by the defendant in a negligence case, when the plaintiff had knowledge of the danger, voluntarily exposed himself to the danger and was injured.
Describe the counterfeiting area of white collar crime.
Copying of genuine items without authorization -- money, designer clothing, other products. EX: illegal copyrighting of currency
What is a grand jury?
Determines probable cause. -A body of people, often 23, who are chosen to sit periodically for at least a month and as long as a year to decide whether to issue indictments.
reasonable person
The standard which one must observe to avoid liability for negligence; often includes the duty to foresee harm that could result from certain actions.
What did Scott Levine do?
He owned a company that distributed internet ads to e-mail addresses and got access to unauthorized data. He was charged to 8 years in prison plus 3 years on probation. -Computer and technology have created new versions of old criminal laws. EX: unauthorized entry into computer systems is the new versions of the old "breaking and entering" laws
Describe the money laundering area of white collar crime.
Hiding the truth about the origins of money, especially illegal activities. BOOK DEFINITION: In employment law, when employees are required to sign, as a condition of continued employment, an agreement that in the future, should they no longer work for the employer, they will not attempt to hire away other employees from the company; these are looked at closely If one is engaged in illegal activities, sch as drug dealing, there is still an obligation to report the income from transactions to the government for tax purposes.
Describe trial.
If a matter goes to trial, government attorney presents prosecutions case. Defendant must be found guilty beyond a reasonable doubt. If jury find the defendant innocent -- end of the matter. Double jeopardy prevents a defendant from being tried a second time for the same crime. If jury can't agree on verdict, there is a mistrial and prosecutor will decide whether to proceed again. If guilty, there may be: prison time, jail time, probation, fines, restitution to victim
What is manslaughter?
May be voluntary or involuntary, is an unlawful killing committed recklessly or under the influence of extreme mental distress. A killing done in the "heat of passion" may be declared manslaughter and subject to lesser punishment than a murder.
proximate cause
In tort law, the action of the defendant that produces the plaintiffs injuries, without which the injury or damage in question would not have existed. -If consequences are too remote there is no liability. -if there is intervening or superseding event/conduct -- no liability. -Some states replace proximate cause with the substantial factor test in bringing about the injury
Privilege
In tort law, when an activity reduces the right of one person, or small number of persons, to enjoy properly without unreasonable interference.
invasion of privacy
In tort, the encroachment on the right of a person to their solitude, the appropriation of a person's reputation for commercial purposes, or the public disclosure of facts that the person had a legal right to keep private.
Describe insurance fraud area of white collar crime.
Insurance companies commit fraud, charging higher rates than allowed by state regulators. -policy holders lie about condition of property to get lower rates. -Policy holders pad their claims to get more money.
res ipsa loquitur
Latin for "the thing speaks for itself;" given the facts presented, it is clear that the defendant's actions were negligent and were the proximate cause o the injury incurred. When a case is so obvious that it basically speaks for itself. Suppose a scalpel was left in the body after surgery. Three years later there is ongoing pain and the x-ray shows that the scalpel was left in the body from the surgery years ago -- this speaks for itself if this was the only surgery had -- it must have been carelessly left there during the early surgery and is the cause for injury
sine qua non
Latin for "without which not;" an indispensable thing; something on which something else relies upon.
What are the business implications from money laundering?
Money laundering is taking proceeds of criminal activities such as drug smuggling and transforming cash in the appearance of legitimate business. -Doesn't attract law enforcement attention. -1 to 2 trillion dollars laundered worldwide each year. TONY SOPRANO EX: -Tony Soprano earns 1 million dollars from loan sharking and drug dealing. -He creates Soprano Coin Laundry, Inc. -Deposits cash into corporate bank account as income from laundry -Pays himself a salary -Looks like legitimate income
What is first degree murder?
Most serious. It is a murder that was planned or what committed with extreme cruelty.
What is second degree murder?
Murders that are not premeditated and generally receive lesser punishments.
Describe the prosecution process.
Occurs when prosecuting attorney has enough evidence to make criminal charges. -Will be either a misdemeanor or felony -In some cases, a grand jury will review a potential felony case -If grand jury determines probable cause, usually it will issue an indictment against the accused.
Describe the bribery area of white collar crime.
Offer or taking of money, goods, services, etc. to influence official actions or decisions. BOOK DEFINITION: The offering, giving, receiving, or soliciting of something of value for the purpose of influencing the action of an official in the discharge or public or legal duties. EX: a member of Congress from California was sentenced to over 8 years in prison for taking cash in exchange for legislative favors.
Define probable cause.
Reasonable ground to believe the existence of facts warranting the undertaking of certain actions, such as the arrest of search of a person. In order to obtain a warrant, the judge must show probable cause.
What is a toll?
Refers to a time period, usually set by statute, required to meet an obligation or to be met for a right to exist, such as a statute of limitation that must be met to have the right to have a cause of action. If something has tolled, the right has been lost.
Ordinary care
Same as due care
Describe the mail fraud area of white collar crime.
Sending fraudulent materials through the U.S postal service or using the U.S postal service to communicate
liability waiver
Similar to an exculpatory clause, in that a party contracts to waive certain tort rights that may otherwise exist against another party; these can be valid if limited in scope and the risks involved are clearly understood by the party who agrees to the waiver, which is found to be reasonable by the court.
What is the Racketeer Influenced and Corrupt Organization (RICO) Act?
The Racketeer Influenced and Corrupt Organizations (RICO) Act: -Originally an extra weapon against organized crimes. Especially the mafia -Racketeering originally meant activities, such as bribery or extortion. -Modern meaning: broadened the term to include activities such as mail fraud etc. -Successful RICO claim receives triple actual damages + attorney's fees through civil claims. -Now mail and wire fraud included as crimes under RICO -Government can seek injunction seizing defendant's assets, preventing their transfer or require the defendant to post a performance bond. -Government may press for imprisonment for criminal violations. -Complicated and unpredictable area of the law -Rarely applied to the Mafia. -Is now used in suits against persons, businesses, political protest groups and terrorist organizations.
superseding cause
The act of a third party, or an outside force, that intervenes to prevent a defendant from being liable for harm to another due to negligence EX: Jay Z falls into the ditch and starts to drown and tiger woods tries to save him and tiger woods dies trying to save him. if there is an intervening or superseding event/conduct -- no liability
Define money laundering.
The act of transferring illegally obtained money through legitimate people or account so that its original source cannot be traced; a federal crime that is often involved in illegal international transactions.
Due care
The degree of care that a reasonable person can be expected to exercise to avoid harm reasonably foreseeable if such care is not taken
What is negligence and what are the elements of negligence?
The failure to do something that a reasonable person, guided by the ordinary considerations that regulate human affairs, would do or the doing of something that a reasonable person would not do. -Unintentional careless conduct that creates an unreasonable risk of harm to others. -There is negligence even if there was no intent to cause harm ELEMENTS: 1. Duty to use reasonable care (depending on the circumstances) 2. Breach of duty of care (by act or omission) 3. Proximate cause of injury and loss (or substantial factor) 4. Damages
Define arraignment.
The initial step in a criminal prosecution; the defendant is brought before the court to hear the charges and enter a plea. -Accused is placed under arrest based on warrant. -In non-violent matters, accused must turn herself in, rather than be taken into custody by the police. -Suspect is booked at police station, photographed, finger printed and searched. -The accused has a change to contact an attorney. -the judge may release the accused or require bail and will set a court date. -Violent criminals, or those who court fears might flee before trial are held without bail, or bail is set very, very high. -Sometimes defendants plea bargain -- allows matter to be settled under court supervision -Defendant pleas guilty to charges or lesser charge or pleads no contest in exchange for agreed punishment. -In felony cases, the judge decides at the arraignment whether there is sufficient evidence to proceed or if the matter should be reduced to a misdemeanor or dismissed.
Battery
The intentional not allowed touching of another. The "touching"may involved a mere touch that is offensive or an act of violence that causes serious injury. -Intentional physical contact without consent -Even if no actual physical harm, offense to a reasonable person's sense of dignity may constitute a batter -use of fist, hand, or kicking -use of weapons. EX: gun or stick -unwanted kiss - in some states
Describe credit card fraud area of white collar crime.
Unauthorized use of a credit card to obtain goods, services, or cash. EX: A thief goes through the trash to find discarded receipts and then uses your account numbers illegally. OR A dishonest clerk makes an extra imprint from your credit or charge card and uses it to make personal charges.
Define exclusionary rule.
Under the 14th amendment, as interpreted by the courts, evidence that has been gathered in violation of the search and seizure rules cannot be used against a defendant in a trial. -May be called the "fruit of the poisonous tree"
Define double jeopardy.
When a defendant is prosecuted or sentenced twice for the same offense. Double jeopardy is prohibited by the Fifth Amendment.
What is the deal with multinational employers and criminal charges abroad?
When people work in another nation, they are subject to its laws and procedures. Sometimes also subject to their own nation's laws as well (i.e. U.S. applies its laws against bribery by U.S. citizens outside U.S.) Experience of Rio Tinto - global mining and resource company with headquarters in London and Melbourne. It is supplier of iron ore to China - has many Chinese and Non-Chinese employees working in China. Four Rio Tinto employees in Shanghai arrested, accused of taking bribes and stealing commercial secrets. Tried and convicted - received sentences ranging from 7-14 years. All four (3 Chinese Nationals and 1 Australian) confessed crimes. Criminal trials in China are held secret. Australian Prime Minister complained about lack of transparency. Was rebuked by Chinese Ministry of Foreign Affairs for not respecting Chinese law & making "irresponsible comments". Agreement signed in 1999, allows Australian representative to sit in on legal proceedings in China. However, no Australian official was allowed into the courtroom until day the verdicts were announced. Defendants had lawyers, but would not speak to media. Details of alleged bribes were provided when verdicts read - no evidence made public. Damage to Chinese steel industry: Said to be 1.02 Billion Yuan ($150 Million) because judge said actions of defendants "put the Chinese steel industry into a powerless position." Investigation by Rio Tinto found no evidence of bribes but the four men were fired when convicted and actions termed "deplorable". Company did not want to "irritate" the Chinese government. Firms doing business abroad must realize that laws can be quite different in other countries. If foreign citizens working in those countries become involved in criminal proceeds - home country can do little to help.
Describe United States v. Young case
gasoline may be sold if for marina use. A man named Young used it for non marina purposes. Fed EX let the IRS x-ray packages shipped to Young and found a lot of cash. At trial Young said that IRS did not obtain warrant. But FED EX told customers do not ship cash and we may open and inspect your packages at our option. Because of this Young had no expectation of privacy of packages being x-rayed by IRS agents with FEDEX permission. So Young assumed the risk. It was no offense to Young's 4th Amendments rights.
Self-defense
generally, a legal excuse for the use of force to resist an attack on one's person or to defend another person who is under attack or properly that is under attack. This defense may apply in common-law cases and in criminal cases.
