Business Law Chapter 9 Handout

Transcription

1 Major Differences: 2 Felonies Serious crimes, punishable by Death or prison for more than one (1) year. Misdemeanors Non-serious (petty) crimes punishable by jail for less than one(1) year and/or by fines. An act can have both civil and criminal consequences. 3 1

2 4 To be convicted of a crime, a person must: Commit a guilty act (actus reus). Have the guilty mind (mens rea) during commission of the guilty act. 5 State of Mind. Required intent (or mental state) is indicated in the applicable statute or law. Criminal Negligence or Recklessness (unjustified, substantial and foreseeable risk that results in harm). 6 2

3 State of Mind: Strict Liability and Overcriminalization. Federal code lists over 4,000 criminal offenses, many do not list a mental state for conviction. Strict liability crimes are found in environmental, drug laws that affect public health, safety, and welfare. 7 A corporation itself cannot be imprisoned but can be convicted of crime through acts of its officers. Liability of the Corporate Entity. 8 Corporations may be convicted of criminal activity if: Crime is within agent/employee s scope of employment; Corporation fails to perform a legally required duty; or Crime authorized or requested by corporate principal/officer. 9 3

4 Corporate officers and directors are personally liable for crimes they commit. Also, they may be criminally liable for acts of their under the Responsible Corporate Officer doctrine. U.S. v. Park (1975). 10 Violent Crime. Murder, sexual assault, rape, robbery. Property Crime. Burglary, larceny, theft of trade secrets, theft of services, arson, receipt of stolen goods, forgery. Public Order Crime. 11 Crimes occurring in the business context using non violent means to obtain personal or business advantage. Embezzlement. CASE 9.1 People v. Sisuphan (2010). Is the intent to return stolen property a defense? 12 4

5 Crimes occurring in the business context (continued): Mail and Wire Fraud (federal). Bribery. Bankruptcy Fraud (federal). Insider Trading (federal). Theft of Intellectual Property. 13 Operates illegitimately by providing illegal goods and services: Money Laundering. RICO(criminal and civil liability). 14 Justifiable Use of Force: Self Defense of People and Property can use deadly force if reasonable belief of imminent death or serious injury; cannot use deadly force to protect property alone. 15 5

6 Necessity: criminal act necessary to prevent greater harm. Entrapment: Key issue: was the defendant pre disposed to commit the act? Statute of Limitations. Immunity. 16 U.S. Constitution provides specific safeguards for those accused of crimes at federal and state level. Criminal procedures are designed to protect against the arbitrary use of power by the government. 17 Fourth Amendment protection from unreasonable searches and seizures. Fourth Amendment requirement that no warrant for a search or an arrest be issued without probable cause. 18 6

7 Fifth Amendment requirement that no one be deprived of life, liberty, or property without due process of law. Fifth Amendment prohibition against double jeopardy (trying someone twice for the same criminal offense) 19 Fifth Amendment requirement that no person be required to be a witness against (incriminate) himself. Sixth Amendment guarantees of a speedy trial, public trial by jury, right to confront witnesses, and the right to a lawyer. 20 Eighth Amendment prohibitions against excessive bail and fines and against cruel and unusual punishment. 21 7

8 Evidence obtained in violation of the Fourth Amendment is excluded from trial: Fruit of the Poisonous Tree excluded as well. Case 9.2 Herring v. United States (2009). Is evidence inadmissible when seized based on mistaken belief of police? 22 CASE 9.3 Miranda v. Arizona (1966) required police to inform suspects of their constitutional rights. Exceptions to Miranda: public safety, certain confessions, suspect must unequivocally assert right to counsel

9 25 26 Class Discussion: is a defendant s right to cross examine a witness violated by two way videoconferencing? Federal Sentencing Guidelines. Shift Away from Mandatory Sentencing. Increased Penalties for Certain Crimes. 27 9

10 Any act directed against computers or that uses computers as an instrumentality of a crime. Cyber Fraud: fraud committed over the internet (e.g., Nigerian letter scam). Online Auction Fraud. 28 Cyber Theft (continued). Employment Fraud. Credit Card Crime on the Web. Hacking. Malware and Worms. New Service Based Hacking Available at Low Cost. Cyber Terrorism. 29 Prosecution of Cyber Crime. Location crime is an issue. Jurisdiction of courts is an issue. Computer Fraud and Abuse Act. Person is liable if he accesses a computer online, without authority, to obtain classified, private, or protected information. Penalties include fines and imprisonment