Chapter 5 – Crimes

CrimesIntentional Torts

Negligence and Strict LiabilityIntellectual Property and Unfair

Competition

© 2010 The McGraw-Hill Companies, Inc. All rights reserved.

Crimes

Wherever Law ends,Tyranny begins.

John Locke

© 2010 The McGraw-Hill Companies, Inc. All rights reserved.

The nature and elements of a crime Constitutional limitations on criminal law Criminal procedure Constitutional protections Corporate crime

Learning Objectives

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Nature of Crimes

Crimes are public wrongs, classified from most serious to least serious as Felony Misdemeanor Infraction

Purpose of criminal sanctions (fines or imprisonment): deterrence, rehabilitation, incapacitation

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Elements

To convict a defendant of a crime, the government must Demonstrate that alleged acts violated a

criminal statute Prove beyond a reasonable doubt that the

defendant committed the acts Prove the defendant had the capacity of

criminal intent Courts narrowly interpret criminal statutes

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U.S. v. Sun-Diamond Growers

Facts: Federal grand jury indicted the company

under the illegal gratuity statute for allegedly giving approximately $5900 in gifts to a public official and the federal district court jury found the company guilty

Appellate court held that the district court judge had improperly instructed the jury

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Issue before the U.S. Supreme Court: Does conviction under the statute require

any showing beyond the fact that a gratuity was given because of an official’s position?

Statutory Interpretation: Text of statute prohibits only gratuities

given “for or because of any official act performed or to be performed.”

“Official act” defined in subsection of statute

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Statutory Interpretation: Statute would not have defined “official act”

unless it required a particular official act be identified and proved to convict defendant

To require otherwise would create absurdity Held:

Government must prove a link between a thing of value given to a public official and a specific “official act”

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Constitutional Limitations

Government may not enact an ex post facto (after the fact) law Thus a person cannot be charged with a

crime for an act that when committed was not a crime

Constitutionally-protected behavior cannot be criminal Example: Griswold v. Connecticut

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Constitutional Limitations

First Amendment allows government to regulate indecent speech and does not protect obscene expression To determine if expression is obscene,

courts apply the three-part Miller test Example: Supreme Court applied the

Miller test to strike down most of the Congressional efforts to criminalize obscenity on the Internet

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Proof and Intent

Defendants are presumed innocent until proven guilty beyond a reasonable doubt

Most serious crimes require proof of the defendant’s mens rea, or criminal intent Defendant must have had capacity to

form criminal intent Three types of incapacity recognized:

intoxication, infancy, and insanity

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Arthur Andersen v. U.S.

Facts: Arthur Andersen audited Enron’s accounting

practices In response to government investigation of

Enron, Andersen began to destroy records related to Enron – allegedly according to the firm’s document retention policy – despite objections by some employees

Records destruction continued until Andersen was served with subpoenas for records

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Facts (cont.): Andersen found guilty of “knowingly…and

corruptly” persuading employees to destroy documents that would be needed in an official proceeding (i.e., witness tampering)

Issue before the Supreme Court: Whether Arthur Andersen’s conviction must

be reversed because the jury instructions misinterpreted the elements of the offense

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Statutory interpretation: Text establishes the mens rea –

knowingly – and then a list of acts Discussion of trial court’s jury

instructions: Instructions lowered the level of

culpability required to impose criminal liability and expanded the list of acts Practical meaning: trial court judge made

it too easy to convict Andersen5 - 14


Held: Jury instructions were flawed Case remanded for further proceedings

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Criminal Procedure

Arrest and booking of defendant Arrest report filed with prosecutor If defendant charged, complaint filed

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Initial appearance of defendant before judicial officer

Preliminary (probable cause) hearing

Criminal Procedure

If probable cause exists, formal charge – information or indictment – filed with court

Arraignment of defendant in which defendant enters a plea Guilty, not guilty, nolo contendere (no contest)

Defendant who pleads not guilty and faces incarceration for more than six months may choose a jury trial Bench trial (judge only) also available

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Constitutional Protections

Bill of Rights: first ten amendments to the U.S. Constitution Literally binds only the

federal government, but applied to states through the due process clause of the Fourteenth Amendment

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Constitutional Protections

Fourth Amendment protects persons against unreasonable and arbitrary searches and seizures Interpreted by Supreme Court to protect

a reasonable expectation of privacy General rule: warrantless searches are

unreasonable (unconstitutional) See United States v. Hall

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United States v. Hall

Facts: U.S. Customs agent took bag of shredded

documents from dumpster outside Bel-Air, Inc., a company under investigation

Agent used reconstructed documents to obtain a warrant to search for and seize many documents

Bel-Air’s chairman, Hall, indicted on various counts for allegedly supplying restricted goods to Iran

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Facts (cont.): Hall filed motion to suppress documentary

evidence arguing a violation of the Fourth Amendment

Trial court denied motion; Hall was convicted

Issue on appeal: Application of Katz test: whether Hall and

Bel-Air had a reasonable expectation of privacy in the documents in the dumpster

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Holding: Bel-Air did not take

sufficient steps to restrict public access to garbage, thus subjective expectation of privacy not objectively reasonable

Trial court’s denial of Hall’s motion affirmed

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What is a Search?

Many Fourth Amendment cases carve out exceptions to the general rule, establishing activities that do not constitute a search: Visual observation of things or activities

in public view Narcotics detection dogs used in a public

place to investigate luggage or cars Enhanced aerial photography of a facility

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What is a Search?

But the Supreme Court in Kyllo v. United States, held a device not in public use to examine what would otherwise be hidden is a search, thus presumptively unreasonable without a warrant

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Warrantless Searches

Supreme Court has held that constitutional warrantless searches include: Area within an arrestee’s immediate control Premises police enter in hot pursuit of an

armed suspect Stop-and-frisk searches for weapons Inventory searches of property (e.g.,

briefcase, automobile) in an arrestee’s possession

Consensual searches5 - 25

The Exclusionary Rule

The exclusionary rule prevents the use of evidence seized in an illegal search in a subsequent trial of the defendant Supreme Court

restricts the operation of the rule

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USA PATRIOT Act

Within six weeks after the attack on the United States on Sept. 11, 2001, Congress enacted a statute that amended more than a dozen statutes and broadly expanded the government’s ability to conduct searches of property and library records, monitor Internet activities, and track electronic communications

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The Fifth Amendment

The Fifth Amendment provides a privilege or protection against compelled testimonial self-incrimination Practical meaning: a person may remain

silent if making a statement would assist the government in prosecuting the person

Miranda warnings safeguard the right Also prohibits prosecutorial comments at

trial about the defendant’s failure to testify

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Missouri v. Seibert

Facts: Seibert was arrested for murder and police

used a "question-first“ procedure in which police questioned Seibert until she confessed

Once confession was made, police gave Seibert her Miranda warnings, and questioned her again until she again confessed

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Missouri v. Seibert

Issue: Is the rule that a suspect waives rights if

suspect confesses pre-Miranda warnings and confesses again after warnings abrogated when the initial failure to give warnings was intentional?

Held: “Question-first” procedure does not

comply with Miranda, thus defendants' statements made during the procedure were inadmissible

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Scope of Fifth Amendment

Self-incrimination privilege applies to Testimonial admissions, thus police may

compel a defendant to provide non-testimonial evidence (fingerprints, body fluids, hair)

Applies only to humans (not corporations) Applies only if a defendant could be charged

with a crime (not merely a civil lawsuit) Double jeopardy clause protects

defendants from multiple criminal prosecutions for the same offense5 - 31

Sixth Amendment

Applies to criminal cases by guarantees of a Speedy trial Impartial jury Right to confront and

cross-examine witnesses

Right to effective assistance of counsel

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Test Your Knowledge

True=A, False = B To convict a defendant of a crime, the

government must prove beyond a reasonable doubt that the defendant committed the acts

Obscenity is fully protected speech by the First Amendment to the Constitution

Only felonies require proof of the defendant’s mens rea, or criminal intent

A defendant may choose one of three pleas: guilty, not guilty, and nolo contendere5 - 33

Test Your Knowledge

True=A, False = B The Bill of Rights is the first dozen

amendments to the Constitution The Fourth Amendment provides a

privilege from self-incrimination and double jeopardy

The Fifth Amendment protects persons against unreasonable and arbitrary searches and seizures

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Test Your Knowledge

Multiple Choice Sixth Amendment to the Constitution

guarantees(a) Speedy trial(b) Right to confront and cross-

examine witnesses(c) Right to effective assistance

of counsel(d) Impartial jury(e) All of the above

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Test Your Knowledge

Multiple Choice Which would not be a constitutional search?

(a) Taking bag of shredded documents from a dumpster

(b) Aerial surveillance of a manufacturing plant

(c) Thermal imaging device to detect heat in a home

(d) A stop-and-frisk search for weapons

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White Collar Crimes

Under modern rule, a business organization may be liable for criminal offenses committed by employees who acted within the scope of their employment and for the benefit of the corporation

Numerous policy debates about how to deal with corporate crime

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Ethics in Action

Does an employee have an ethical duty to his or her employer?

When an employee learns of apparently illegal conduct by his or her employer, does the employee have an ethical duty to become a whistleblower?

What practical consequences might an employee face if he or she blows the whistle on illegal corporate activity?

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White Collar Crimes

Regulatory offenses Example: violating the Clean Water Act

Fraudulent acts Examples: false claims, fraudulent

concealment, wire fraud Sarbanes-Oxley Act violations

Example: Knowingly altering documents or business records with the intent to impede a government investigation

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White Collar Crimes

Bribery and Illegal Gratuities Such as violating Foreign Corrupt Practices

Act Racketeer Influenced and Corrupt

Organizations Act (RICO) violations Example of criminal RICO: using income

derived from a “pattern of racketeering activity”

Example of civil RICO: See Cedric Kushner Promotions Ltd. v. King

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Computer Crime

In general, existing criminal statutes apply to criminal activity via computers, though these laws often are inadequate

Computer Fraud and Abuse Act imposes criminal and civil liability on a person who “knowingly, and with intent to defraud, accesses a protected computer without authorization . . . [and] obtains anything of value.”

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Test Your Knowledge

True=A, False = B An employee’s sole duty is to his or her

employer RICO violations are only criminal in

nature An employee may access a company’s

computer to obtain personal information about his or her supervisor and use the information to persuade the supervisor to give the employee a raise

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Thought Questions

What do you think of the Arthur Andersen case?

What do you think of the USA PATRIOT Act? Are constitutional protections for criminal

matters overly broad or too narrow?

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Chapter 5 – Crimes

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Transcript of Chapter 5 – Crimes