PART

PART

Crimes & Torts

CrimesIntentional Torts

Negligence & Strict LiabilityIntellectual Property & Unfair

Competition

2

McGraw-Hill/Irwin Business Law, 13/e

© 2007 The McGraw-Hill Companies, Inc. All rights reserved.

Crimes

PA ET RHC 5

“Wherever Law ends, Tyranny begins.”

John Locke

Learning Objectives

The nature and elements of a crime Constitutional limitations on criminal

law Criminal procedure Constitutional protections Corporate crime

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Nature of Crimes Crimes are public wrongs, classified from

most serious to least serious as Felony Misdemeanor Infraction

To convict a defendant, government must Demonstrate alleged acts violated criminal

statute Prove defendant’s guilt beyond reasonable doubt Prove defendant had criminal intent

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Proof and Intent

Defendants presumed innocent until proven guilty beyond a reasonable doubt

Most serious crimes require proof of defendant’s capacity for criminal intent (mens rea) Incapacity recognized:

intoxication, infancy, and insanity

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Criminal Procedure

Arrest and booking of defendant Arrest report filed with prosecutor If defendant charged, complaint filed Defendant’s initial appearance before

judge Preliminary (probable cause) hearing If probable cause exists, formal charge –

information or indictment – filed with court

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Criminal Procedure

Arraignment of defendant in which defendant enters a plea Guilty, not guilty, 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 Applies to federal government and

to states through due process clause of Fourteenth Amendment

Constitutionally-protected behavior cannot be criminal

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Fourth Amendment Fourth Amendment protects persons

against unreasonable and arbitrary searches and seizures (protects privacy) General rule: warrantless searches are

unreasonable (unconstitutional) See United States v. Hall

Many Fourth Amendment cases carve out exceptions to the general rule, establishing activities that do not constitute a search

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Warrantless Searches Supreme Court has held that constitutional

warrantless searches include: The 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 - 11

The Exclusionary Rule

Exclusionary rule prevents use of evidence seized in an illegal search in a subsequent trial of the defendant

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Supreme Court restricts operation

of the rule

Fifth Amendment Fifth Amendment provides a privilege or

protection against compelled testimonial self-incrimination Practical meaning: person may remain

silent if making a statement would assist 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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Scope of Fifth Amendment Self-incrimination privilege applies to

Testimonial admissions (non-testimonial evidence allowed, such as fingerprints, body fluids, hair)

Humans only (not corporations) A defendant only if he/she could be charged

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

defendants from multiple criminal prosecutions for the same offense

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Sixth Amendment Applies to criminal cases by guarantees of a:

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Speedy trial Impartial jury Right to confront and

cross-examine witnesses

Right to effective assistance of counsel

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

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Specific White Collar Crimes

Regulatory offenses Fraudulent acts Sarbanes-Oxley Act violations Bribery

and Illegal Gratuities Racketeer Influenced and Corrupt

Organizations Act (RICO) violations Computer crime

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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

Writing an editorial using obscenities is not a crime since all speech is fully protected by the First Amendment to the Constitution

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

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Test Your Knowledge True=A, False = B

A defendant may choose one of three pleas: guilty, not guilty, and no contest

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 searches5 - 19

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 legal search under the Constitution? (a) Taking bag of shredded

documents from the dumpster of a suspect (b) Aerial surveillance of a

manufacturing plant (c) Thermal imaging device to

detect heat in a home (d) A stop-and-frisk search for

weapons5 - 21

Thought Questions

What would you do if your employer asked you to do something you believed to be a crime?

What would you do if you were arrested and you were NOT guilty of any crime?

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