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Biz Law Test 1 Ch. 6
Terms in this set (65)
What is a Crime
a wrong against society proclaimed in a statute and if committed punishable by society through fines, removal from public office, imprisonment, and in a few cases death
preponderance of the evidence standard of proof-anything over half that would tip the (unreadable) in P's behavior
Criminal cases beyond a reasonable doubt standard-if there is any reasonable doubt that a criminal D did not commit the crime with which he/she has been charged the verdict must be not guilty
crime that carries the most severe sanctions which range from one year in a state or federal prison to the death penalty. Ex-arson, murder, rape, robbery
lesser crimes than felonies punishable by a fine or incarceration in jail for up to one year. Ex-disorderly conduct, DUI, trespass
the least serious kind of criminal offense such as a traffic or building code violation
What constitutes Criminal Liability
Performance of a Criminal Act -or-
a specified state of mind or intent on the person performing them
-most often acts of commission (doing a prohibited act) but can also be acts of omission (not doing a required act- ex. Failure to file a tax return)
-thoughts of committing a crime are not enough
-person can be guilty of attempted crimes but generally only if he/she took substantial steps toward the criminal act
-a wrongful mental state is as necessary as a wrongfully act in establishing criminal liability
Corporate Criminal Liability
-a corporate entity can be held liable for crimes (can't go to jail but fines, loss of license, etc.) Corporation can be held liable for crimes committed by their agents and employees within the cause and scope of their employing
-corporate directors and officers are personally liable for crimes they commit even if they did the act only to benefit the corporation
-Further corporate directors and officers may be held liable for the actions of employees under their supervision
-Responsible corporate officers doctrine-a court may impose criminal liability on a corporate officer regardless of whether he/she participated in directed or even knew about a given criminal violation
the act of forcefully and unlawfully taking personal property of any value of another; force of intimidation is usually necessary for any theft to be considered a ________
unlawful entry or breaking into a building with the intent to commit a felony (in some states any crime) therein.
the wrongful taking and carrying away of another person's personal property with the intent to permanently deprive the owner of the property.
a. Pick pocketing is this
b. No fear here like in robbery
c. Taking company supplies and products home for personal use with authorization
d. What is "property"?-Computer programs may be property.
e. Computer time may be_______; taking another cell phone and using it.
Obtaining Goods by False Pretenses
Part of larceny, description is basically the definition
Receiving stolen goods
only requirement is that recipient knows or should have known that the goods were stolen.
the willful and malicious burning only requirement is that recipient knows or should have known that the goods were stolen.
the fraudulent making or altering of any writing in a way that changes the legal rights and liabilities of another
White Collar Crimes
nonviolent crime committed by individuals or corporations to obtain a personal or business advantage
the fraudulent appropriation of funds or other property by a person to whom the funds or property has been entrusted.
Public Order Crimes
Crimes contrary to public values and morals (today-public drunkenness, prostitution, gambling, illegal drug use)
Mail and Wire Fraud
it is a federal crime to use the mail system to defraud the public. Criminal elements are:
a. Mailing or causing someone else to mail a writing (anything written, printed, or photo copied) for the purpose of executing a scheme to defraud
b. A contemplated or an organized scheme to defraud by false pretense
c. Can also defraud by any means of mass communication i.e. Radio, tv
A. Directed against computers or computer parts
B. Uses computers as instruments of crime
C. Involves computers and constitutes abuse: financial crimes done through use of computers; theft of computer equipment; theft of goods with aid of computers (manipulating inventory records); computer viruses; software piracy
when a person steals another identifying information and uses it to gain access to the victim's financial records.
harassing a person and putting that person in reasonable fear for his or her safety or close family safety.
using a computer to break into another computer.
a hacker who targets a computer for a serious impact such as impairing a businesses ability to conduct operations.
Bribery of public Officials
any attempt to influence a public official to act in a way that serves a private interest is a crime. Intent must be present and proved; bribe can be anything the recipient considers valuable; the crime occurs when the bribe is offered.
generally people make commercial bribes to obtain information of another business. (Inside info); cover up an inferior product or secure new businesses. Kickbacks or payments to employee of a competing firm for insider info is an example.
Bribery of Foreign officials
it is illegal for American business persons to use bribery in the securing of foreign contracts. This goes on all the time, has to in international business world. (You can bribe low but you can not bribe high).
Creditor may file a false claim against a debtor; debtor may fraudulently transfer assets to favored creditors or favored parties (family members for ex.)
The purchase or sale of securities on the bases of inside information (information that has not been made to the public) One that posses inside information and has a duty not to disclose it to outsiders may not profit from the purchase or sell of securities based on that information until it is available to the public.
falsely reporting income that has been attained through criminal activity as income obtained through a legitimate business enterprise. Illegal profits from drugs, racketeering, prostitution, gambling, etc. Banks are required to report any money transaction of over ten thousand dollars (unless a series of transactions)
Criminal RICO Violations
gambling, arson, extortion, security fraud, mail fraud, wire fraud, welfare fraud, embezzlement, etc.
What is RICO?
Racketeer influenced and Corrupt Organization Act.
-Passed in 1970's as part of the Organized Crime Control Act.
-Under RICO, it is a Federal crime to:
1. Use income obtained from racketeering activity to purchase any interest in an enterprise.
2. To acquire or maintain an interest in an enterprise through racketeering activity.
3. To conduct or participate in the affairs of an enterprise through racketeering activity, or
4. To conspire to do any of the preceding activities.
RICO Violation Penalties
Penalties are harsh.
-Civil penalties can include the divestiture of a D's interest in a business (called forfeiture).
-P's can recover treble damages (3 times their actual damages) plus attorney fees for violations of the RICO statue.
Infant means any person that has not reached the age of maturity. Children that commit crimes generally will be tried for delinquents in a juvenile court. However, in some states a child will be tried as an adult in a regular court if he or she is above a certain age (usually 14) and is guilty of a felony (such as rape or murder). Children do not have the necessary intent to be convicted of crimes
Voluntary Intoxication - Maybe a defense if the D. was extremely intoxicated when committing the wrong.
Involuntary Intoxication - occurs when a person either is physically forced to ingest an intoxicating substance or is unaware that a substance containing drugs or alcohol is ingested. This is a defense to a crime if its effect was to make a person incapable of understanding that the act committed was wrong.
The right and wrong test - person shall not be found guilty if at the time of the act omission or negligence constituting the crime, the person did not have mental capability to distinguish between right and wrong in relation to such act, omission, or negligence.
Mistake of Law
May be a defense only if the D. did not know he or she was breaking the law and the law was not published or reasonably known to the public or the D. relied on an official statement of the law that was erroneous .
Mistake of Fact
Operates as a defense if it negates the mental state necessary to commit the crime. One student mistakenly walks off with another's book bag.
Voluntary agreement to a proposition or an act of another
1. Issue - Does a law forbid an act against the victims will or forbid an act without regard to the victim's wishes.
2. Most often a defense in crimes against property. (IE. You gave it to me)
3. Consent might be a defense if the law forbids and act against the victims will or the consent cancels a harm that the law is designed to present.
1. Unlawful pressure brought to bear on a person causing the person to perform and act that he or she would not otherwise perform. For Duress to an offense:
A. Threat must be of serious bodily harm or death
B. Harm threatened must be greater than the harm caused by the crime.
C. Threat must be immediate and inescapable.
D. D. must have been involved in the situation through no fault of their own.
Justifiable use of Force
1. the privilege to protect one's self or property against injury by another
2. in general people can use the amount of non deadly force that seems necessary to protect themselves, their dwellings, or other property or to prevent the commission of a crime.
3. Deadly force can be used in self-defense if there is a reasonable belief that immanent death or great bodily harm will otherwise result, if the attacker is using unlawful force, and if the defender has not initiated or provoked the attack.
4. Deadly Force in defense of a dwelling is valid only if the unlawful entry Is violent and the person reasonably believes deadly force is necessary to prevent immanent death or great bodily harm.
a defense in which the D. was induced by a public official (usually an undercover agent or police officer) to commit a crime that he/she otherwise would not have committed.
*- For ___________ to be a defense, both the suggestion and the inducement must come from the police officer or undercover agent. Key issue- was the D. predisposed to commit the crime or did the agent induce it?
Statue of Limitations
with some exceptions (murder), this applies to criminal as well as civil cases.
- GA capital crimes other than murder (life imprisonment)- 7 yrs from crime
- other felonies- 4 yrs. from commission of crime
- misdemeanors- 2 yrs from commission of crime
Exceptions to Statue of Limitations
Statutory period will not run if:
- if person runs
- if accused person is unknown
- certain crimes such as child molestation, etc. statute will start to run at the earlier of victim reaching the age of 16 or crime being reported to a law enforcement or government agency.
- California case: US Supreme Court said that states cannot retroactively erase S.O.L.- case- 72 yr old man was accused of molesting his daughters when they were children
5th Amend.- No person can be compelled to be a witness against himself.
- In cases in which the state wishes to obtain information from a person accused of a crime, the state can grant immunity from prosecution or agree to prosecute for a less serious offense in exchange for the information.
Constitutional Safeguards and Criminal Procedures
used to protect everyone against the arbitrary use of power by the government
4th Amendment Protections
protects the "right of the people to be secure in their persons, house, papers, and effects."
an order granted by a public authority (generally a judge) that authorizes law enforcement personnel to search a particular premises or property.
to obtain a search warrant, the officers must convince a judge that they have reasonable grounds, or probable cause, to believe a search will reveal a specific illegality.
- no general warrants (there must be a particular description of the items to be searched/seized).
- if looking for a motorcycle, can't look in drawers
- there are exceptions to the requirement of a search warrant- ex. When it is likely that the items sought will be removed before a warrant can be obtained.
Searches and Seizures in the Business Context
- 4th Amendment protections are important due to the increased frequency of government inspections which can be very disruptive.
- U.S. Supreme Court: Government inspectors cannot enter business premises without a warrant but the standard is different than in non business cases.
- the existence of a general and neutral enforcement plan will justify the issuance of a warrant.
- warrant required to get records of a business held by lawyers, accountants, etc.
- no warrant required to seize spoiled or contaminated food.
- employers have to concern themselves with a balance of maintaining a safe and efficient workplace without violating the 4th Amendment rights of employees.
Due Process of Law
the law must be carried out in a fair and orderly way. D. must have the opportunity to object to the charges against them before a fair, neutral decision maker (judge); must be given the opportunity to confront and cross examine witnesses; and to present their own witnesses.
a person cannot be tried twice for the same criminal offense. Once a D. is acquitted (found not guilty) of a crime, he/she cannot be re-indicted and tried again. However:
- a civil suit can be brought (O.J.)
- states prosecution will not prevent a separate Federal prosecution relating to the same activity (Rodney King- Cops civil rights violations.)
(The giving of testimony that may subject you to criminal prosecution.)
- no person "shall be compelled in any criminal case to be a witness against himself".
- this right does not extend to corporations or partnerships, or their business records even if the records incriminate the business owners.
- right to not self incriminate does extend to sole proprietorships that have not incorporated.
6th Amendment Protections
a.) right to a speedy trial
b.) right to a trial by jury
c.) right to a public trial
d.) right to confront witnesses
e.) right to counsel
8th Amendment Protections
a.) excessive bails or fines
b.) cruel and unusual punishment
- Federal Law- you must report a transport of money more than $10,000.
Ex. Guy boards a plane w/ $350,000 to pay a legitimate debt. U.S. Supreme Court- a punitive forfeiture violates the excessive fines clause if it is grossly disproportionate to the gravity of a D. offense.
- any evidence obtained in violation of the accused 4th, 5th, or 6th Amendment rights, as well as any evidence derived from illegally obtained evidence will not be admissible in court (fruit of the poisonous tree).
purpose is to deter police misconduct
- individuals who are arrested must be informed of certain 5th and 6th Amendment rights.
- If a person waives his/her rights, the burden is on the state to show the waiver was knowingly, intelligently, and voluntarily given.
- Today the Miranda rule has been weakened and there are circumstances in which juries are able to hear confessions even if not voluntary.
before warrant can be issued, there must be probable cause that a person has committed a crime.
routine officer observes a crime, potential flight by a suspect
Indictment or Information
Indictment by a grand jury; felonies prosecutors can indict a ham sandwich. Information in GA is the accusation for misdemeanors.
Indictment is a charge by the grand jury that a person has committed a crime.
- group of a county's best citizens *
- burden of proof on state
- beyond a reasonable doubt
- 3 strike laws- both take away discretion of a judge- social and economic background of a D.
GA has a 2-strike law
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