67 terms

Business Law Chapter 7

Criminal Law and Business
STUDY
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Where did crimes arise from?
Tort Law
Tort Law
occurrences such as accidents, negligence, and libel
Torts=Crimes...Why?
Crimes*

generally the same conduct which can lead to criminal liability will also lead to civil liability in tort
Why do Crimes exist?
Because a Sovereign (federal or state government) has declared some behavior to be not correct against society
Malum in se
Serious wrongs in and of themselves(wrong by nature, evil) ; e.g. murder, arson, rape
Malum Prohibihum
Wrong because prohibited

A crime/wrong by public policy (government body wants to prohibit/discourage behavior) e.g gambling, prostitution
What is the plaintiff in a criminal prosecution?
Sovereign (the people, state, commonwealth, republic)
Who is the plaintiff represented by in a Criminal prosecution?
Prosecuting attorney
Commonwealth
Independent country or community
Correlation between defendant and grand jury & prosecuting attorney
Indicated (pointed out);

Information; an accusation or criminal charge brought by the public prosecutor (District Attorney) without a Grand Jury indictment. This "information" must state the alleged crimes in writing and must be delivered to the defendant at the first court appearance (arraignment)
Grand Jury
a jury to inquire in accusations of crime and to evaluate the grounds for indictments
District Attorney
person responsible for prosecuting criminal cases
Guilt beyond a reasonable doubt (Criminal prosecution)
standard of proof that a prosecutor must satisfy in order to prove a person committed a crime

Jurors are told that they can only find the defendant guilty if they are convinced "beyond a reason- able doubt" of his or her guilt.

Sometimes referred to as "to a moral certainty," the phrase is fraught with uncertainty as to meaning, but try: "you better be damned sure.
What is the burden of proof in a criminal prosecution?
Gult beyond a reasonable doubt
Burden of Proof
The obligation to present evidence to support one's claim
Double Jeopardy, Merger
being tried twice for the same crime

Not allowed-- The prosecution gets ONLY ONE opportunity to try a defendant (must include all crimes even of lesser value) that are based on the same or similar facts (merger)
Prosecution
the institution and conduct of legal proceedings against a defendant for criminal behavior
A crime may be classified according to..
the protection to be provided (duty/obligation to be protected as a person): protection of the person; protection of property; sexual abuse, etc.
What may a crime be classified by?
The punishment the defendant receives (felony, misdemeanor, etc)

Do not need to know crime, just need to know "do you have any felonies?" when applying for a job
Felony punishment
punishable by death or imprisonment for more than a year plus a fine
Misdemeanor punishment
punishable by incarceration in jail up to a year and/or a fine
When does treason exist?
US citizen levies war against the US or gives aid and comfort to an enemy
Administrative crimes
violations of agency rules or regulations (such as rules or regulations of the EPA, FDA or SEC) violations of which may be declared to be criminal
Administrative crimes; malum in se or prohibitum? What establishes the criminality?
Malum Prohibitum; a statute establishes the criminality of certain conduct and sets forth the penalty
Does a trial usually occur with administrative crimes? Entitled to a jury?
Generally the agency will not conduct a trial but an administrative hearing; the violator is entitled to a jury trial
White collar crimes
crime typically committed in the workplace that does not involve violence or force nor does it cause injury to people or physical damage to property

Ex. Graft, embezzlment, fraud, forgery etc.
Business and White collar crimes
guile, deceit and/or concealment

Usually involve attempts to obtain money, property and/or services without paying for them
May seek to secure some undeserved business advantage by graft or kickbacks, etc.
Graft
the practice of offering something (usually money) in order to gain an illicit advantage
Embezzlement
the fraudulent appropriation of funds or property entrusted to your care but actually owned by someone else

(in your care but really the companies money)
Fraud
deliberate trickery intended to gain an advantage

the fraudulent use of a credit card or debit card, obtaining money by false pretenses, etc.
Forgery
the alteration or making of a document in order to affect the legal rights of another or obtain an unwarranted advantage
Examples of forgery
writing a check or bank draft on someone else's account; using a computer to change official records or to change grades
Effects of white collar crimes on businesses
Costs, cld result in death or injury (personal or economic)
Punishment of white collar crimes
Usually receive light punishment; in cases on enron much stiffer penalties have been placed

Internal controls to help
How does victim of white collar crime seek redress (remedy)
Civil suit
Prima facie
as it seems at first sight
What kind of evidence does a criminal conviction provide and for what?
Prima facie and for tort litigation (be in lawsuit)
RICO Act
(Racketeer Influenced and Corrupt Organizations Act): Enacted in 1970 to combat organized crime organizations; private litigants may file suit for triple damages for various state and federal fraudulent crimes committed by a RICO entity
Racketeer Influenced and Corrupt Organizations Act
law intended to eradicate organized crime by establishing strong sanctions and forfeiture provisions
How is a business declared RICO act
if, within a ten-year period, the business commits two of 26 federal crimes, such as mail fraud or wire fraud, or 9 state crimes of fraud
Mail fraud
using the mails, including courier services such as UPS, as part of a calculated scheme to defraud
Wire fraud
when one uses the wires (telephone, telegraph, computers, etc.) as part of a calculated scheme to defraud
Other RICO capabilities?
led to suits against businesses not related to organized crime; more than 75% involve securities fraud;
RICO targets
1. use of income from racketeering (a person who engages in dishonest and fraudulent business dealings.) to purchase an interest in a legitimate business; 2. acquiring or maintaining an interest in an enterprise through racketeering; 3. conducting or participating in the affairs of an enterprise through racketeering; and/or 4. conspire to do any of the above
Criminal Liability inclues what two elements?
the intent to commit a crime (mens rea) and the affirmative act or omission (actus rea)
Mens Rea
intent to commit a crime (mens rea must be present)

example: I want to kill Frank
Actus Rea
affirmative act or omission
Mens rea & Actus rea correlation
Must be linked to one another (Firing the gun at Frank)
Criminal Conspiracy
Participating with another in committing a crime;

the parties need only act in concert (common plan), but must intend to complete the target crime
(Can have different plans but must have same target; must follow through)
Specific, general and liability crimes
Specific - Murder
General- Burglary
Strict liability- Traffic
Ohio Code
(A) No person shall purposely cause the death of another or the unlawful termination of another's pregnancy.(B) No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised Code.(C) Division (B) of this section does not apply to an offense that becomes a felony of the first or second degree only if the offender previously has been convicted of that offense or another specified offense.(D) Whoever violates this section is guilty of murder, and shall be punished as provided in section 2929.02 of the Revised Code.
Common law crimes for children
Under7 is uncapable of committing a crime;those over 14 were presumed to be capable of forming criminal intent; between 7 and 14 there was a rebuttable presumption a child could form criminal intent

Modern criminal laws have changed this
Juvenile courts
Corporations and Intent
Can not be held for criminal conduct; a whole company can not form intent
Alibi
defendant can plead lack of intent, did not commit the act or was elsewhere (alibi);
Entrapment
a defense that claims the defendant would not have broken the law if not tricked into doing it by law enforcement officials
Immunity from prosecution
a grant of protection from prosecution in return for testimony against another at trial; generally a complete defense to prosecution, protection from self-incrimination
Insanity
was the defendant, at the time of commission of the crime, able to conform his/her conduct to the requirements of the law; covers mental disease or defects; is the defendant competent to stand trial; may be a complete defense
Intoxication
Voluntary intoxication is generally not a defense; for a specific intent crime, if intoxication prevents defendant from forming the requisite intent, can be a defense
What amendments/things protect the rights of accused persons?
4th 5th 6th 8th

Innocent until proven guilty

Fourth amendment requires the State to have legally obtained probable cause to search and/or seize persons and/or personal effects
What does the 5th amendment do?
protects citizens from self-incrimination (giving away you did it), requires due process and requires indictment by a grand jury for capital or infamous offenses; prohibits double jeopardy


A traffic law requiring a suspected drunk driver to take a breath or blood test does not violate the Fifth
What does fourth amendment do?
requires the State to have legally obtained probable cause to search and/or seize persons and/or personal effects
What does the consent of search do?
relieve the State of the need to show probable cause


Failure to obtain probable cause may exclude evidence at trial
Miranda rights
Rights possessed by persons who are arrested by the police. (Remain silent, Attorney, etc.)
Where do the Miranda rights arise from?
5th and 6th amendments
Silence..
Is not evidence of guilt
What does the 6th amendment do?
amendment guarantees a right to a jury trial; to the assistance of counsel; and the right to confront adverse (preventing success) witnesses
8th amendment
amendment provides protections against excessive bail and against "cruel and unusual punishment" (unacceptable) inflicts pain, suffering, humilation